Judge Shopping Report

Case 2:22-cv-00184-LCB-CWB Document 339 Filed 10/27/23 Page 1 of 53
UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

FOR THE NORTHERN DISTRICT OF ALABAMA

FOR THE SOUTHERN DISTRICT OF ALABAMA
)
In re Amie Adelia Vague, et al. ) Case No.: 2:22-mc-3977-WKW
) (UNDER SEAL)
FINAL REPORT OF INQUIRY
Before Proctor, D.J., Watkins, D.J., and Beaverstock, D.J.:
FOR THE PANEL:
On April 18, 2022, Judge Liles C. Burke entered an order in Walker v. Marshall, 5:22-cv-
480-LCB (N.D. Ala.), in which he expressed concern about certain actions taken by counsel for
the plaintiffs in Walker and Ladinsky v. Ivey, 5:22-cv-447-LCB (N.D. Ala.), that may have
evidenced judge shopping. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 24). At Judge Burke’s
direction, his order was forwarded to the chief judge of each federal district court in Alabama. The
chief judges convened the undersigned three-judge panel to inquire about the issues raised by
counsel’s actions.
This Final Report sets out the Panel’s findings after inquiring into the key question
presented here: whether counsel for the plaintiffs in Walker and Ladinsky, and in a subsequently
filed case, Eknes-Tucker v. Ivey, 2:22-cv-184-LCB (M.D. Ala.) attempted to circumvent the
random case assignment procedures of the United States District Courts for the Northern District
of Alabama and the Middle District of Alabama.

In conducting this inquiry, the Panel elicited sworn testimony from all 39 lawyers involved
in Walker, Ladinsky, and Eknes-Tucker. The Panel conducted five hearings and also received
written declarations. The testimony provided the Panel a clear understanding of counsel’s actions
and motivations regarding Walker and Ladinsky. Based solely on the Panel’s review of counsel’s
conduct, and for the reasons explained in this Final Report, the Panel concludes without reservation
that certain lawyers for the plaintiffs in Walker and Ladinsky purposefully attempted to circumvent
the random case assignment procedures of the United States District Courts for the Northern
District of Alabama and the Middle District of Alabama.
In this Final Report, first, the Panel explains its legal authority to conduct this inquiry.
Second, the Panel sets out the history of Walker and Ladinsky before this inquiry commenced,
which establishes the basis for Judge Burke’s concerns and the genesis of this inquiry. Third, the
Panel describes the procedural history of this inquiry. Fourth, the Panel sets out all the relevant
testimony gleaned from this inquiry in a narrative statement of facts that describes counsel’s
actions from the time before they filed Walker and Ladinsky, up through filing the subsequent and
related case Eknes-Tucker. Finally, the Panel explains its factual findings and will forward this
Final Report to Judge Burke.
I. Legal Authority to Conduct the Inquiry
As noted at the outset of this inquiry, courts have inherent authority to address lawyer
conduct that abuses the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).
The Eleventh Circuit has explained why so-called judge shopping -- that is, attempting to
circumvent a court’s random case assignment -- abuses the judicial process:
We have no difficulty concluding that a contrivance to interfere with the judicial

assignment process constitutes a threat to the orderly administration of justice.
Every court considering attempts to manipulate the random assignment of judges
has considered it to constitute a disruption of the orderly administration of justice.
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In McCuin, the Fifth Circuit held that permitting such manipulation would bring
“the judicial system itself into disrepute” and “would permit unscrupulous litigants
and lawyers to thwart our system of judicial administration.” [McCuin v. Texas
Power & Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983)]. This court in Robinson
. . . expressed the obvious concern with respect to the effects of such manipulation
and judge-shopping on the proper administration of justice. [Robinson v. Boeing
Co., 79 F.3d 1053, 1055-56 (11th Cir. 1996)]. The Second Circuit’s decision in
FCC . . . implicitly recognized that such manipulation is disruptive of the orderly
administration of justice; the court used its inherent power to disqualify a lawyer in
order to preserve “the neutral and random assignment of judges to cases.” [In re
F.C.C., 208 F.3d 137, 139 (2d Cir. 2000)]. Similarly, the Supreme Court of
Michigan, in Fried, . . . emphatically condemned such manipulation: “It is
prejudicial to the administration of justice, because it is an undue interference with
the proper assignment of cases.” [Grievance Adm’r v. Fried, 570 N.W.2d 262, 267
(1997)]. See also Standing Committee on Discipline v. Yagman, 55 F.3d 1430, 1443
(9th Cir. 1995) (stating in dictum that “[j]udge-shopping doubtless disrupts the
proper functioning of the judicial system and may be disciplined.”); United States
v. Phillips, 59 F. Supp. 2d 1178, 1180 (D. Utah 1999) (collecting cases and
scholarly literature indicating that manipulation of the random case assignment
process is universally condemned as a disruption of the integrity of the judicial
system that would undermine public confidence in the assignment process).
In re BellSouth Corp., 334 F.3d 941, 959-60 (11th Cir. 2003).
When a court becomes aware that judge shopping may have occurred, the court may -- and
should -- conduct an appropriate inquiry. See, e.g., BellSouth, 334 F.3d at 946 (“Judge Smith
conducted an evidentiary hearing to elicit testimony both about the circumstances of BellSouth’s
hiring of LMPP and about whether plaintiff’s counsel improperly steered the Jenkins case to Judge
Clemon by falsely claiming that it was related to the Wright case.”); see also Wolters Kluwer Fin.
Servs., Inc. v. Scivantage, 564 F.3d 110, 114 (2d Cir. 2009) (reviewing a district court hearing into
whether counsel engaged in judge shopping by filing a Rule 41 voluntary dismissal); In re Fieger,
191 F.3d 451 (Table), 1999 WL 717991, at *1, 4 (6th Cir. 1999) (finding that a district court three-
judge panel appropriately sanctioned an attorney for judge shopping after appointing independent
counsel to prosecute the matter and holding a hearing). Such hearings are part of a judicial inquiry,
not an adversarial proceeding. See United States v. Shaygan, 652 F.3d 1297, 1308 (11th Cir. 2011).
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After this inquiry began and while it was under way, some of the counsel raised due process
questions. But, the Panel provided all counsel due process. (See Doc. # 22 at 4-5). The Panel
provided notice to counsel in the May 10, 2022 order that the Panel would inquire about the
conduct Judge Burke described in his order that could be viewed as evidencing an intent to
circumvent the practice of random case assignment in the District Courts for the Northern and
Middle Districts of Alabama. (Doc. # 1 at 1-2). In that order, the Panel also identified specific
actions taken by counsel, stated it would “inquire about the issues raised by counsel’s actions”
pursuant to the court’s inherent authority to police judge shopping, and referenced potential
sanctions. (Id. at 5). The Panel continued to give fair notice to counsel, especially by identifying
the Panel’s specific areas of concern at the first hearing in this inquiry and again in the July 8, 2022
order. (See May 20 Hearing Tr. at 48-52; Doc. # 22 at 2-3). All attorneys in this inquiry were
afforded an opportunity to respond over the course of five hearings and in written declarations.
II. History of Walker, Ladinsky, and Eknes-Tucker
On Friday, April 8, 2022, after the court was closed, plaintiffs Dr. Morissa J. Ladinsky, Dr.
Hussein D. Abdul-Latif, Robert Roe, and Jane Doe filed suit in the Northern District of Alabama
against the Governor, Secretary of State, and the district attorneys for Shelby and Jefferson
counties. (Ladinsky, 5:22-cv-447-LCB (N.D. Ala.), Doc. # 1). The attorneys who filed the
complaint were Melody Eagan, Jeffrey Doss, and Amie Vague from Lightfoot, Franklin & White
LLC; Andrew Pratt, Misty Peterson, Adam Reinke, Gilbert Oladeinbo, Brent Ray, Abigail
Hoverman Terry, and Michael Shortnacy from King & Spalding LLP; Asaf Orr from National
Center for Lesbian Rights; Jennifer Levi from GLBTQ Legal Advocates & Defenders; Scott
McCoy, Diego Soto, and Jessica Stone from Southern Poverty Law Center; and Sarah Warbelow
and Cynthia Weaver from Human Rights Campaign Foundation. (Id. at 33-36). The Ladinsky
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lawsuit challenged Alabama’s Vulnerable Child Compassion and Protection Act, which the
Alabama Legislature passed on April 7, 2022, and the Governor signed into law on April 8, 2022.
(Id. at 2, ¶ 1). The Act, in part, prohibits certain medical treatments for transgender minors. The
Act’s effective date was to be May 8, 2022.
The court entered Ladinsky on its docket on the morning of April 11, 2022. The case was
initially randomly assigned to Judge Anna M. Manasco. At 1:15 p.m. that day, Judge Manasco
recused, and the case was then randomly reassigned to Magistrate Judge Staci G. Cornelius.
(Ladinsky, 5:22-cv-447-LCB (N.D. Ala.), Docs. # 2, 3). The parties did not unanimously consent
to dispositive jurisdiction by a Magistrate Judge, so, on April 14, 2022, Ladinsky was randomly
reassigned to Judge Annemarie Carnie Axon. (Ladinsky, 5:22-cv-447-LCB (N.D. Ala.), Doc. #
11).
On Monday, April 11, 2022, at 3:04 p.m., plaintiffs Jeffrey Walker, Lisa Walker, H.W.,
Jeffrey White, Christa White, and C.W. filed suit in the Middle District of Alabama against the
Secretary of State and the district attorneys for Limestone and Lee counties. (Walker, 5:22-cv-480-
LCB (N.D. Ala.), Doc. # 1). The Walker lawsuit, like Ladinsky, challenged Alabama’s Vulnerable
Child Compassion and Protection Act. (Id.). The attorneys who filed the complaint were LaTisha
Faulks and Kaitlin Welborn from American Civil Liberties Union of Alabama Foundation; Lisa
Nowlin-Sohl, Malita Picasso, Chase Strangio, and James Esseks from American Civil Liberties
Union Foundation, Inc.; Carl Charles, Tara Borelli, and Sruti Swaminathan from Lambda Legal;
Kathleen Hartnett, Julie Veroff, Zoë Helstrom, Andrew Barr, Adam Katz, Elizabeth Reinhardt,
Katelyn Kang, Valeria Pelet del Toro, and Robby Saldaña from Cooley LLP; and Lynly Egyes,
Milo Inglehart, and Dale Melchert from Transgender Law Center. (Id. at 46-48).
5
On the JS 44 Civil Cover Sheet accompanying the Walker complaint, Walker counsel
marked the case related to Corbitt v. Taylor, 2:18-cv-91-MHT (M.D. Ala.). (Walker, 5:22-cv-480-
LCB (N.D. Ala.), Doc. # 1-1). The Civil Cover Sheet instructions state, “[The Related Cases]
section of the JS 44 is used to reference related pending cases, if any.” Instructions for Attorneys
Completing Civil Cover Sheet Form JS 44, https://www.almd.uscourts.gov/sites/default/files/
2022-06/JS-044-civil-cover-sheet-rev-04-2021.pdf. Corbitt, a lawsuit challenging an Alabama
policy that prevented transgender people from obtaining a driver’s license without first disclosing
to the government health information about surgical procedures, was filed in 2018, was on appeal
to the Eleventh Circuit, and had been closed for over a year since January 15, 2021. (Corbitt, 2:18-
cv-91-MHT (M.D. Ala.), Doc. # 102). The State appealed the judgment in favor of the plaintiffs
in Corbitt, and when Walker was filed that appeal remained pending. The deadline for the plaintiffs
to file a motion for attorney’s fees in Corbitt was extended until after resolution of the appeal.
(Corbitt, 2:18-cv-91-MHT (M.D. Ala.), Doc. # 113).
On Tuesday, April 12, 2022, the court entered Walker on its docket and randomly assigned
the case to Chief Judge Emily C. Marks. At 5:37 p.m. that day, the Walker plaintiffs filed a motion
to reassign the case to Judge Myron H. Thompson, who previously presided over Corbitt. (Walker,
5:22-cv-480-LCB (N.D. Ala.), Doc. # 8). At 5:41 p.m., the Walker plaintiffs filed a motion for a
temporary restraining order and/or preliminary injunction blocking enforcement of Alabama’s
Vulnerable Child Compassion and Protection Act. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. #
9). Before filing that motion, the Walker plaintiffs’ counsel took steps in an attempt to steer the
case to Judge Thompson – including marking the case related to Corbitt and calling Judge
Thompson’s chambers.
6
On Wednesday, April 13, 2022, Chief Judge Marks entered an order to show cause why
Walker should not be transferred to the Northern District of Alabama, where Ladinsky, the first-
filed action, was pending. Lawyers from the two cases conducted a conference call to discuss
matters. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 3). Eventually, the parties consented to
the transfer. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Docs. # 16, 18). The next day, April 14,
around 9:00 p.m., the Walker plaintiffs’ lawyers responded to the order to show cause, withdrew
their motion to reassign Walker to Judge Thompson and stated, “Plaintiffs’ interest is in the
expeditious injunction of the unconstitutional law they challenge, and [p]laintiffs will seek to
pursue their motion for this preliminary relief expeditiously in the Northern District.” (Walker,
5:22-cv-480-LCB (N.D. Ala.), Doc. # 18 at 3). Less than 24 hours later, they would dismiss the
case under Rule 41.
On Friday, April 15, 2022, Chief Judge Marks transferred Walker to the Northern District
of Alabama. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 20). Chief Judge Marks’s transfer
order states, “After evaluating the factors and requirements for a transfer pursuant to 28 U.S.C. §
1404(a), and in light of the first-filed rule, the Court finds that in the interest of justice, this action
should be transferred to the Northern District of Alabama where it might have been brought, to
which all parties have consented, and where it may be decided with Ladinsky to avoid the
possibility of conflicting rulings and to conserve judicial resources.” (Id. at 2). Chief Judge Marks
“ma[de] no finding on the issues of consolidation.” (Id.).
Upon transfer to the Northern District, Walker was docketed in the Northeastern Division
because there was no division designation by the parties and on the transfer order the only Northern
District parties named in the suit each resided in that division. Walker was randomly assigned to
Judge Burke upon its arrival in the Northern District on April 15, 2022. At 4:07 p.m. that day,
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Judge Burke set Walker for a status conference for the following Monday, April 18, 2022, at 10:00
a.m. in Huntsville. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 22). Judge Burke’s order setting
the status conference states, “The purpose of the hearing is to discuss the status of the case, not to
argue the merits of the motion for injunctive relief.” (Id.).
On April 15, 2022, Judge Axon was presiding over day four of a criminal trial with multiple
defendants, which at the time of trial was anticipated to last for more than two weeks.1 So, at 4:41
p.m., considering the pending motion for a preliminary injunction in Walker and the pressing
claims for injunctive relief in the Ladinsky complaint, Judge Axon transferred Ladinsky to Judge
Burke “[i]n the interest of efficiency and judicial economy.” (Ladinsky, 5:22-cv-447-LCB (N.D.
Ala.), Doc. # 14).
At 6:24 p.m. that same day, the Walker plaintiffs filed a notice of voluntary dismissal
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Walker, 5:22-cv-480-LCB (N.D.
Ala.), Doc. # 23). Minutes later, at 6:33 p.m., the Ladinsky plaintiffs did the same. (Ladinsky, 5:22-
cv-447-LCB (N.D. Ala.), Doc. # 15).
After the assignment of Walker to Judge Burke, the parties in Walker and Ladinsky agreed
to consolidate the two cases. As part of that process, the parties began coordinating with each other
and prepared to file a motion to consolidate. As the state made final preparations to file the
unopposed motion to consolidate, Ladinsky was transferred by Judge Axon to Judge Burke. After
that occurred, the attorneys for the state of Alabama indicated that they no longer planned to file a
motion to consolidate.
The next day, Saturday, April 16, 2022, an article published online at 5:43 p.m. and updated
at 9:22 p.m. stated that Eagan, an attorney for the Ladinsky plaintiffs, wrote to a reporter via email,
1
All of the lawyers in this inquiry testified that they were not aware of Judge Axon’s criminal trial until the
Panel informed the lawyers of such at the May 20, 2022 hearing.
8
“We do plan to refile imminently, to challenge this law that criminalizes medical treatment
accepted as the standard of care in the medical profession and deprives parents of their right to
choose such medical care for their children.” Paul Gattis, “Lawsuits Seeking To Overturn New
Alabama Transgender Law Dropped, Could Be Refiled.” AL.com (Apr. 16, 2022, 5:43 p.m.),
https://www.al.com/news/2022/04/lawsuits-seeking-to-overturn-new-alabama-transgender-law-
dropped-could-be-refiled.html. On Monday, April 18, 2022, Eagan made a similar statement to a
different media outlet. See Brian Lyman, “Attorney: Plaintiffs Challenging Alabama’s Ban On
Transgender Medicine Plan New Case.” Montgomery Adviser (Apr. 18, 2022, 11:34 a.m.),
https://www.montgomeryadvertiser.com/story/news/2022/04/18/plaintiffs-challenging-alabama-
ban-transgender-medicine-plan-new-case-sb-184-kay-ivey-lawsuit/7355576001/.
On Monday, April 18, 2022, Judge Burke entered an order in Walker denying the motion
for temporary restraining order as moot because of the plaintiffs’ voluntary dismissal. (Walker,
5:22-cv-480-LCB (N.D. Ala.), Doc. # 24). In that order, Judge Burke described the procedural
history of Walker and Ladinsky leading up to the voluntary dismissals and noted that “[p]laintiffs’
counsel is now telling the media that they ‘plan to refile immediately.’” (Id. at 3). Judge Burke
stated, “At the risk of stating the obvious, [p]laintiffs’ course of conduct could give the appearance
of judge shopping—‘a particularly pernicious form of forum shopping’—a practice that has the
propensity to create the appearance of impropriety in the judicial system.” (Id.) (footnote omitted).
At Judge Burke’s direction, the Clerk of Court for the Northern District of Alabama forwarded a
copy of his order to the chief judge of each district court in Alabama.
The following day, on Tuesday, April 19, 2022, plaintiffs Rev. Paul A. Eknes-Tucker, and
pseudonym defendants Brianna Boe, James Zoe, Megan Poe, Kathy Noe, Dr. Jane Moe, and Dr.
Rachel Koe filed suit in the Middle District of Alabama against the Governor, the Secretary of
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State, the district attorneys for Montgomery, Cullman, Lee, and Jefferson counties, and the district
attorney for the 12th Judicial Circuit. (Eknes-Tucker, 2:22-cv-184-LCB (M.D. Ala.), Doc. # 1).
This third lawsuit also challenged Alabama’s Vulnerable Child Compassion and Protection Act.
(Id.). The complaint was signed by the same attorneys who filed Ladinsky. (Compare id. with
Ladinsky, 5:22-cv-447-LCB (N.D. Ala.), Doc. # 1). Eknes-Tucker was randomly assigned to Judge
R. Austin Huffaker. On April 20, 2022, Judge Huffaker, “by the authority of the Court to manage
the district court docket, promote the orderly and expeditious disposition of cases, and reassign a
case to a judge who presided over a prior-related case,” reassigned Eknes-Tucker to Judge Burke.
(Eknes-Tucker, 2:22-cv-184-LCB (M.D. Ala.), Doc. # 3). Judge Burke sat by designation and
presides over Eknes-Tucker in the Middle District. (Id.).
III. Procedural History of the Inquiry
The Panel commenced this inquiry on May 10, 2022. (Doc. # 1). In its initial order, the
Panel wrote, “As Judge Burke noted, the conduct he described in his Order could be viewed as
evidencing an intent to circumvent the practice of random case assignment in the District Courts
for the Northern and Middle Districts of Alabama.” (Id. at 1-2). The order described the sequence
of events from the filing of Ladinsky through the reassignment of Eknes-Tucker to Judge Burke.
(Id. at 2-5). The order identified the Panel’s legal authority for conducting this inquiry, noted that
binding precedent condemned judge shopping, and referenced potential sanctions. (Id. at 5). The
Panel ordered all attorneys who appeared in Walker, Ladinsky, and Eknes-Tucker to appear before
the Panel on May 20, 2022 “to allow the panel to inquire about the issues raised by counsel’s
actions.” (Id.).
With the exception of three excused lawyers, all of the lawyers who appeared in Walker,
Ladinsky, and Eknes-Tucker attended the May 20, 2022 hearing. (May 20 Hearing Tr. at 4-7). Each
10
lawyer was either represented by counsel at the hearing or secured counsel soon after the hearing.
(See id. at 8-10; Docs. # 10-15). At the outset of the hearing, the Panel advised all parties that all
district judges in the State had been consulted about the three-judge panel format of this inquiry.
The Panel also advised all parties that preliminarily, the Panel did not view the possible judge-
shopping as supporting criminal penalties or disbarment sanctions, unless a lawyer lied to the
Panel.
Of the 39 lawyers subject to this inquiry, 21 lawyers appeared in Walker, 17 lawyers
appeared in Ladinsky/Eknes-Tucker, and Shannon Minter, the Legal Director for National Center
for Lesbian Rights, did not appear in any case but materially contributed to Ladinsky/Eknes-
Tucker. The Panel divided the lawyers into three categories based on their knowledge of and roles
in the decision-making in Walker and Ladinsky/Eknes-Tucker: (1) attorneys who have knowledge
but had no input; (2) attorneys who have knowledge and had input; and (3) attorneys who were
leaders and decision-makers in this litigation. (See id. at 18-21, 23-27, 30-31, 45-73, 84-93). The
Panel identified the following topics as areas of potential knowledge or input: where to file a
lawsuit; who to name as a plaintiff or defendant in a lawsuit; any discussion about making a related
case request; any communication about transfer or dismissal of a case; whether or where to refile
a case; coordinating between the groups prosecuting the cases; any discussions about judge
assignments; any discussions about intentions or efforts to get a judge on a case or avoid a judge
on a case; and any communication about any of those topics with anyone outside the groups
involved in the cases. (Id. at 48-52).
After each lawyer testified as to his or her level of knowledge and input, the lawyers in
Walker were categorized as follows:
• Individuals who have knowledge but had no input: Picasso; Swaminathan; Inglehart;
Melchert; Barr; Reinhardt; Kang; Helstrom; Katz; Saldaña; Veroff; and Pelet del Toro.
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• Individuals who have knowledge and had input: Charles; Strangio; Nowlin-Sohl; and
Welborn.
• Leaders and decision-makers: Esseks; Hartnett; Borelli; Egyes; and Faulks.
(May 20 Hearing Tr. at 46, 52-62, 84-90). The lawyers in Ladinsky/Eknes-Tucker were categorized
as follows:
• Individuals who have knowledge but had no input: Vague; Pratt; Peterson; Reinke;
Oladeinbo; Hoverman Terry; Stone; and Soto.
• Individuals who have knowledge and had input: Orr and Weaver.
• Leaders and decision-makers: Eagan; Doss; McCoy; Ray; Warbelow; Levi; and Minter.
(May 20 Hearing Tr. at 46-48, 63-73, 90-93).
The Panel enlisted former Alabama Supreme Court Justice Bernard Harwood as a special
master to interview each person who had knowledge but no input. (May 20 Hearing Tr. at 12, 74-
76). Justice Harwood interviewed that group of lawyers in a separate courtroom. (See id. at 74-75,
81).
Lawyers from the State of Alabama appeared at the May 20 hearing and presented
information relevant to the Panel’s judge shopping inquiry. (See id. at 33-45). Edmund Lacour, the
Solicitor General of Alabama, presented on behalf of the State. Lacour noted that one of the
arguments the State raised in opposing the preliminary injunction motion in Eknes-Tucker centered
on the plaintiffs’ delay in seeking emergency relief. (Id. at 34). He indicated that these delays
seemed attributable to what the State thought was judge shopping. (Id.). He further pointed out
that lawyers from the Civil Rights Division of the United States Justice Department were
coordinating with attorneys for the various plaintiffs who filed suit in the Northern and Middle
Districts of Alabama. (Id. at 36-37). Lacour also observed that named-plaintiffs in the first two
actions – Dr. Ladinsky and Jeff Walker – appeared in a press conference together, each opposing
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the state legislation. (Id. at 38-39). The press conference was held on April 8, 2022, the date the
legislation was signed into law by the Governor and Ladinsky was filed. (Id.).
Lacour recounted a separate press conference that took place on April 11, the date Walker
was filed. Appearing at that conference was Alabama Representative Neil Rafferty, an outspoken
critic of the legislation. (Id. at 40). Rep. Rafferty stated that the dispute would move on to the
courts and that HRC, SPLC, the Center for Lesbian Rights, and Lambda Legal had “teamed up”
to challenge the law and had “plaintiffs ready to go.” (Id.). Obviously, HRC, SPLC, and the Center
for Lesbian Rights appeared in Ladinsky and Lambda Legal appeared in Walker. Lacour next
recounted the timing of the events of April 15, when Ladinsky and Walker were dismissed, press
coverage over the weekend (including quotes from the plaintiffs’ counsel), and the filing of Eknes-
Tucker in the Middle District the next week. (Id. at 42-45).
Meanwhile, the Panel took the sworn testimony of the Walker lawyers Nowlin-Sohl,
Welborn, Strangio, Faulks, and Charles at the May 20 hearing. The Panel inquired about each
lawyer’s role in the litigation – including communications they had with the Ladinsky team and
others, the history of preparing the Walker lawsuit, the decision to mark Walker related to Corbitt,
communications regarding Walker’s transfer to the Northern District, discussions about potential
judge assignments, any explanations for voluntarily dismissing Walker soon after Judge Axon
transferred Ladinsky to Judge Burke, and communications regarding potentially filing a new
lawsuit. (See, e.g., May 20 Hearing Tr. at 98-130).
The Panel invoked a modified version of Federal Rule of Evidence 615 at the hearing to
prevent the lawyers from hearing other lawyers’ testimony before providing their own. (May 20
Hearing Tr. at 74, 93-94). This modified rule continued throughout all proceedings and applied to
oral and written testimony. (See Doc. # 22 at 3-4 n.3; Doc. # 40 at 1-2).
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At the parties’ request the Panel next convened on June 17, 2022 for a status conference.
(See Docs. # 16, 20). At the conference, the parties’ counsel raised several objections related to
the way the Panel conducted the May 20, 2022 hearing, requested that the Panel conclude its
inquiry based on the information gleaned from that hearing, and advanced several arguments as to
why the parties did not engage in wrongful judge shopping. (See June 17 Conference Tr. at 3-40).
At the close of the conference, the Panel instructed the parties to submit a joint proposal for how
this inquiry should proceed. (Id. at 41-43).
The parties submitted their joint proposal on June 24, 2022, requesting that the Panel
dismiss this inquiry, or, alternatively, dismiss the non-decision-makers, provide the parties with
the transcripts of all proceedings, permit the parties to submit written declarations, and not require
any additional oral testimony. (Doc. # 21).
On July 8, 2022, the Panel ordered 21 of the parties to file in camera declarations of their
participation in and knowledge of the following categories:
1. The actual or potential judicial assignments in Ladinsky, Walker, and/or

Eknes-Tucker;
2. Any actions or decisions taken in the course of preparing to file Ladinsky,

Walker, and/or Eknes-Tucker that relate to any actions or plans that were intended
to cause, actually caused, or may have caused the assignment or reassignment to,
or the actual or potential recusal of, any judge in the Northern or Middle Districts
of Alabama;
3. Any action or decision that relates to which parties to name in Ladinsky,

Walker, and/or Eknes-Tucker, where to file each action, and all the reasons related
to any such decision about who to name and where to file;
4. Any action or decision that relates to attempts to associate other law firms
or the actual association of other law firms to work with counsel in Ladinsky,
Walker, and/or Eknes-Tucker;
5. Any and all actions or decisions that relate to coordination and/or

dismissal of the Ladinsky and Walker cases and the reasons for dismissal, including
but not limited to (1) the conference call that occurred on April 15, 2022 and (2)
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any other communications between Ladinsky counsel and Walker counsel on that
topic;
6. Any and all actions that relate to the decision to file Eknes-Tucker in the
United States District Court for the Middle District of Alabama;
7. Any knowledge you have that relates to (1) preparation for the hearing in
this matter (including circulation of any Q&A document), and (2) the questions
expected to be asked or that were actually asked by the court at the May 20, 2022
hearing; and
8. The identity of each attorney, not included in the style of the original
order, whom you are aware of being involved in any input, recommendation,
decision, or strategy regarding any of the subjects referenced above and the details
of each such person’s involvement.
(Doc. # 22 at 2-3). The July 8, 2022 order also reminded the lawyers of the sequestration order
that had been in effect since the start of the May 20, 2022 hearing, applied those same restrictions
to the written declarations, ordered preservation of relevant materials, and explained how the Panel
afforded the parties due process and would continue to do so. (Id. at 3-5).
In response to the July 8, 2022 order, the parties filed several motions regarding transcripts,
declarations, the sequestration order, privileges, and whether the inquiry should proceed. (See
Docs. # 23, 24, 25, 26, 27, 28, 32, 34, 35, 37, 38, 39). The Panel resolved those motions with two
orders on July 25, 2022. (Docs. # 40, 41). The orders afforded certain individuals access to certain
hearing transcripts, clarified the scope of the sequestration order, reiterated the Panel’s authority
to conduct the inquiry, further justified the order for in camera declarations, and denied all requests
to stay or terminate the inquiry. (See id.).
After receiving the written in camera declarations, the Panel conducted four more hearings.
On August 3, 2022, Walker attorneys Hartnett, Borelli, Charles, and Esseks testified. (The Panel
called Charles to testify a second time to follow up on information about a phone call he made to
15
Judge Thompson’s chambers on April 12, 2022). On August 4, 2022, Ladinsky attorneys Eagan,
Hoverman Terry, Ray, Shortnacy, and Doss testified.2
On November 3, 2022, Ladinsky attorneys Orr, Stone, McCoy, Minter, Soto, Weaver, and
Warbelow testified. And on November 4, 2022, Ladinsky attorney Levi testified. At those hearings,
the Panel inquired about the same broad topics as those discussed at the May hearing and contained
in the attorneys’ declarations. (See Doc. # 22 at 2-3).
On September 23, 2022, the Panel terminated the following 21 lawyers from the inquiry
because the inquiry produced no evidence of their intent to circumvent the practice of random case
assignment: Vague; Katz; Barr; Strangio; Melchert; Reinhardt; Veroff; Welborn; Kang; Nowlin-
Sohl; Picasso; Inglehart; Saldaña; Swaminathan; Pelet del Toro; Helstrom; Hoverman Terry;
Reinke; Oladeinbo; Pratt; and Peterson. (Doc. # 59). In its last order, the Panel terminated the
following lawyers from the inquiry for the same reason: Gotell, Egyes, Borelli, Ray, Weaver, Soto,
Stone, and Warbelow. (Doc. # 70). Those terminations left the following lawyers in the
proceedings: Doss, Eagan, Charles, Esseks, Harnett, Levi, McCoy, Minter, Faulks, Orr, and
Shortnacy. (Docs. # 1, 59, 70).
IV. Facts
The relevant facts gleaned from the oral and written testimony elicited in this inquiry are
set out below. Many lawyers provided the same accounts of the same events; so, in some instances,
the Panel cites representative testimony, but this does not imply that any declarant did not testify
2
At the August 4 hearing, Sam Franklin, a partner at Lightfoot, Franklin and White, who represents lawyers
from that firm who are subjects in this inquiry, renewed a motion to terminate these proceedings. (Aug 4 hearing Tr.
at 274-76). Franklin indicated that the Panel’s inquiry had been discussed among the Birmingham bar and was even
heard by summer law clerks at Lightfoot Franklin. He also indicated that the inquiry was weighing heavily over
lawyers at his firm. Of course, the Panel fully understands that this is a serious matter. But, we are convinced that we
have proceeded in the correct fashion here.
16
about a particular matter simply because that declarant’s testimony is not cited. The Panel
discusses below several areas of concern, in turn.
A. Marking Walker Related to Corbitt
The Panel inquired about Walker counsel’s decision to mark Walker related to Corbitt, a
closed case. Corbitt involved a suit against officials of the Alabama Law Enforcement Agency for
not allowing transgender persons to change their sex designation on their driver’s license if they
have not had male-to-female or female-to-male surgery. Welborn, Charles, Faulks, Hartnett,
Borelli, and Esseks each testified that Walker counsel had a good faith belief that Walker was
related to Corbitt because of overlapping legal and factual issues between the two cases. (May 20
Hearing Tr. at 148, 171-74, 179; Aug. 3 Hearing Tr. at 19-21, 23, 91-94, 104, 186-87). But Corbitt
was a closed case. Walker counsel believed that Corbitt was arguably “pending,” and could
therefore be marked as related per the instructions on the JS 44 Civil Cover Sheet, because the
appeal of the final judgment in Corbitt was still pending in the Eleventh Circuit and the plaintiffs
planned to file a post-judgment motion for attorney’s fees in Corbitt if they prevailed on appeal.
(May 20 Hearing Tr. at 179, 185-87; Aug. 3 Hearing Tr. at 19-20, 102, 132-34, 186-87); (see
Corbitt, 2:18-cv-91-MHT (M.D. Ala.), Doc. # 113).
Hartnett testified that a Cooley attorney looked for, but could not find, any local rule or
case law in the Middle District of Alabama pertaining to case relatedness (other than the JS 44
instructions). (Aug. 3 Hearing Tr. at 20). Cooley attorneys discovered a rule in the Southern
District and case law in the Northern District that would preclude Walker from being related to
Corbitt if those standards applied in the Middle District. (Id.). Nevertheless, Hartnett testified, that
“because there was not a controlling standard in the Middle District, we believed it was reasonable
to mark it.” (Id.).
17
In addition to and independent of the purported related factual and legal issues, counsel
testified candidly3 they marked Walker related to Corbitt because they wanted Walker assigned to
Judge Thompson. (May 20 Hearing Tr. at 171-74; Aug. 3 Hearing Tr. at 23, 91-94). Counsel has
stated they considered Judge Thompson a favorable draw because of his handling of Corbitt and
that he ruled in favor of the plaintiffs who asserted transgender rights claims. (Id.). Of course,
counsel’s concessions are consistent with the motion they filed seeking to have Walker reassigned
to Judge Thompson.
B. Contact With Judge Thompson’s Chambers
Walker counsel mistakenly believed that, by marking Walker related to Corbitt, Judge
Thompson would review the Walker complaint to determine whether it was indeed related to
Corbitt. (Aug. 3 Hearing Tr. at 145; Nov. 3 Hearing Tr. at 23; Esseks Dec. at 7, ¶¶ 18, 20; Charles
Dec. at 21, ¶ 74). So, although Walker was never assigned to Judge Thompson, Esseks suggested
on the morning of Tuesday, April 12 that someone call Judge Thompson’s chambers to alert him
that a motion for preliminary injunction would soon be filed. (Aug. 3 Hearing Tr. at 26, 95; Esseks
Dec. at 7, ¶ 20). Borelli testified that she remembered several emails discussing when the best time
of day would be to call Judge Thompson’s chambers. (Aug. 3 Hearing Tr. at 96). Charles
volunteered to make the call. (Charles Dec. at 20, ¶ 72). Charles called Judge Thompson’s
chambers that afternoon and spoke with his law clerk. (Id. at 20, ¶ 73). Charles informed the clerk
that Walker had been filed and marked related to Corbitt and that the Walker team would soon file
a motion for preliminary injunction. (Id.; May 20 hearing Tr. at 194). Charles reported the details
of the call to the Walker team via email. (Aug. 3 Hearing Tr. at 29, 31; Charles Dec. at 21, ¶ 73).
3
To be clear, however, Walker counsel’s candor on the whole is concerning. For example, Esseks’s testimony
that, “based on [his] understanding of what related means,” he would have marked Corbitt as related to Walker, even
if that case had been assigned to a judge that had previously ruled against them, strains credulity, particularly
considering the extent of counsel’s efforts to steer Walker to Judge Thompson. (Aug. 3 Tr. at 188-89).
18
Charles was carrying out a task that the Walker team thought obviously important at the early
stages of Walker. No one in the Walker case ever called Chief Judge Marks’s chambers to alert
her of the motion for preliminary relief.
The Panel asked Charles multiple questions about his phone call to Judge Thompson’s
chambers. He unequivocally and repeatedly testified that he did not call judge’s chambers. At the
May 20 hearing, Charles initially denied several times that he called Judge Thompson’s chambers.
(May 20 Hearing Tr. at 178-79, 184-85, 187, 190-91). Initially, the Panel first inquired of Charles
generally if he made any phone call to the Middle District. (Id. at 178). Next, the Panel asked if he
“call[ed] anyone’s chambers about the assignment of the case.” (Id. at 179). Then the Panel
specifically asked him three times whether he spoke to any law clerk of any judge in the Middle
District about assignment of Walker to that judge or the potential for a motion for temporary
restraining order being filed in Walker. (Id. at 184-85, 187, 190-91). Each time, Charles responded
that he never made any phone call and testified that he “was incredibly certain” he would have
remembered if he did. (Id. at 191). But, shortly after the Panel read his cell phone number to him,
Charles asked if he could correct his earlier answers and admitted that he did call Judge
Thompson’s chambers. (Id. at 191-92). Charles’s testimony is even more troubling given that he
made this statement while being questioned about his call to Judge Thompson’s chambers: “My
pause is only because I am endeavoring to be as candid as possible. I do not recall ever calling any
chambers with this request, Your Honor, at any point.” (Id. at 179).
Calling chambers to alert a judge to an upcoming motion for emergency relief might be
innocent and even helpful. But Judge Thompson was not – and never was – assigned to Walker.
When Charles called Judge Thompson’s chambers, Walker had already been assigned to Chief
Judge Marks. After Charles called Judge Thompson’s chambers, either Joshua Block, an ACLU
19
attorney who was not counsel in the Walker case, or Katz informed a member of the Walker team
that Walker was assigned to Chief Judge Marks. (Id. at 31, 141-42, 192). Katz then spoke to a
Middle District clerk’s office employee and was told that counsel would need to file a motion to
relate Walker to Corbitt and that simply marking the cases related would not put Walker before
Judge Thompson. (May 20 Hearing Tr. at 100; Aug. 3 Hearing Tr. at 102-03; Esseks Dec. at 8,
¶ 21; Charles Dec. at 21, ¶ 76). So, on April 12, 2022, at 5:37 p.m., Walker counsel filed a motion
to reassign Walker to Judge Thompson as a related case. (Walker, 5:22-cv-480-LCB (N.D. Ala.),
Doc. # 8). At no point, however, did any of the Walker counsel call Judge Marks’s chambers to
alert her to the existence or filing of a TRO.
The only reasonable reading of Charles’s testimony is that, initially, he deliberately misled
this Panel about the phone call to Judge Thompson’s chambers – and continued to do so up until
the moment in his testimony that it became clear to him that the Panel was fully aware of his call.
It is inconceivable that, in light of all the circumstances surrounding the call, Charles genuinely
forgot about the phone call to Judge Thompson’s chambers.
In addition to Charles’s call to Judge Thompson’s chambers, the Walker team took other
steps designed to have the case assigned to Judge Thompson. Charles was also involved in an
April 14 late afternoon telephone call among the Walker counsel during which Julie Veroff
reported her efforts to gain information from the chambers of Judge Thompson through a “friend
of a friend” at Equal Justice Initiative. Through the afternoon, several messages were received by
Veroff, first through an unnamed former clerk of Judge Thompson, and eventually fourth or fifth-
hand allegedly from an unnamed current clerk. In her first declaration submitted on July 27, 2022,
Veroff explained how she learned this information:
[O]n April 14, 2022, I reached out to an attorney in Alabama referred to me by a

friend to request information on Judge Axon and Chief Judge Marks. During our
20
communication, the Alabama attorney also offered to seek information about how
Judge Thompson handles related cases, and I accepted the offer. I understand that,
around this time, other attorneys on the Walker team reached out to former clerks
of Judge Thompson to ask how Judge Thompson handles related case assignments.
I do not recall receiving much information based on these conversations, other than
that, as a general practice, a case would be randomly assigned or the originally
assigned judge would hear any motion to reassign.
(Veroff Dec. at 8). In Veroff’s supplemental declaration, submitted on August 1, 2022, which was
submitted in response to her counsel’s request to provide additional detail about those
communications, she explained that she communicated with that Alabama attorney via text
messages as follows:
4. The messages reflect that the Alabama attorney I contacted

communicated with me about Judge Marks’s reputation with respect to criminal
defendants but did not have any information about Judge Marks’s reputation in civil
cases or about Judge Axon. I also explained to her that we were trying to transfer
the case to Thompson but had heard that he may not be taking on new cases if he
could avoid it. She then offered to put some questions before one of his clerks. I
responded by thanking her, and explained that “[i]f you happen to know a current
clerk and would be able to find out how his chambers handles requests to transfer
to him (e.g., is it up to him or the judge they [sic] has the case) and if he’s accepting
new cases, that’d be incredibl[y] [sic] helpful . . . ”
The information Veroff eventually received, though not necessarily reliable,

was in response to her interest in the workings of Judge Thompson’s chambers on
case assignments. By the end of the April 14 late telephone conference, Walker
counsel had decided to consent to a transfer to the Northern District of Alabama,
and filed a pleading reporting such at 9:06 p.m. (Doc. 18).
5. Later that afternoon, she reported to me from a former Thompson clerk

that “cases are assigned randomly but [sic] the clerk’s office. Once in a while judges
will trade cases because of external issues (i.e., not subject matter but other
things)[.] But it is otherwise luck of the draw whether a case is assigned to him[.]
I’m not aware of a mechanism to have the case transferred to be honest[.]” I then
explained that we had “indicated on the civil cover sheet that the case is related to
one of his cases and filed a motion to relate the cases . . . .”
(Veroff Supp. Dec. at 2-3).
On April 12, 2022, at 5:41 p.m., the Walker plaintiffs filed their motion for a temporary
restraining order and/or preliminary injunction. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 9).
21
They did not call Chief Judge Marks’s chambers to alert her to the filing of the motion. (May 20
Hearing Tr. at 196-97; Aug. 3 Hearing Tr. at 197-98). Charles testified that he did not call Chief
Judge Marks because the Walker team had a good faith belief that the case would be assigned to
Judge Thompson based on the related-case designation. (May 20 Hearing Tr. at 196-97). Esseks
testified that giving advance notice to Chief Judge Marks before filing the motion for preliminary
injunction was unnecessary because they planned to file the motion for preliminary injunction soon
after learning of Chief Judge Marks’s assignment in the afternoon of April 12. (Aug. 3 Hearing
Tr. 197-98). Esseks also testified that the afternoon of April 12 was much more hectic than that
morning (when they decided to call Judge Thompson). (Id.).
Understood in the context of all the evidence – including (1) Charles’s phone call to Judge
Thompson’s chambers, (2) additional research and plotting regarding how the case might be
assigned to Judge Thompson, (3) the absence of a phone call to Judge Marks’s chambers, and (4)
Charles’s misrepresentations at the hearing – what occurred is quite clear. Behind the scenes,
counsel took surreptitious steps calculated to steer Walker to Judge Thompson even before filing
their motion to have Walker reassigned to him. All of their explanations to the contrary ring hollow.
C. Walker is Transferred to the Northern District of Alabama
On the morning of Wednesday, April 13, Chief Judge Marks entered the order to show
cause why Walker should not be transferred to the Northern District of Alabama where it could be
decided with Ladinsky, the first-filed case, to avoid the possibility of conflicting rulings and to
conserve judicial resources. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 3). That order sparked
several conversations between and among the two teams. That same day, members of the Walker
team discussed whether Walker might actually be the first-filed case because, though Ladinsky
was filed on Friday, April 8, and Walker was filed on Monday, April 11, Ladinsky was dropped in
22
the after-hours box on Friday, Walker was marked related to Corbitt, and Walker, unlike Ladinsky,
had a pending motion for preliminary injunction. (Aug. 3 Hearing Tr. at 38-42). Nowlin-Sohl
testified that the Walker team initially decided to oppose transfer to the Northern District. (May 20
Hearing Tr. at 103).
Members of both teams – at least Esseks, Orr, Eagan, Nowlin-Sohl, Charles, and Soto –
participated in a conference call that started at 5:00 p.m. on April 13, 2022. (Aug. 3 Hearing Tr. at
212-14; Aug. 4 Hearing Tr. at 31-38; Nov. 3 Hearing Tr. at 16-17, 30-31; Eagan Dec. at 5, ¶ 11).
Esseks testified that he asked for the call with the Ladinsky team to inform them that the Walker
team was considering responding to Chief Judge Marks’s order with an argument that the first-
filed rule should not apply because Walker was further along than Ladinsky. (Aug. 3 Hearing Tr.
at 212, 219-20). Orr testified that the Walker team informed the Ladinsky team on the call that they
were considering responding to Chief Judge Marks’s order with an argument that Ladinsky should
be transferred to the Middle District and consolidated with Walker before Judge Thompson in the
interests of judicial efficiency. (Nov. 3 Hearing Tr. at 24). Despite this proposal, Judge Thompson
still was not assigned Walker (and, in fact, never was). The Ladinsky team was very clear on the
call – they did not agree to transfer to the Middle District. (Id. at 25; Nov. 4 Hearing Tr. at 12-13).
The Ladinsky team thought it was a “fantasy” that Walker would end up before Judge
Thompson as a case related to Corbitt. (Nov. 3 Hearing Tr. at 114-15, 263). McCoy understood
that Judge Thompson was presiding over one of his last cases before retiring and thought there
was only a remote chance that Judge Thompson was taking on new cases. (Id.). Levi testified that
she knew Walker would not be related to Corbitt because the latter was not a current case at the
time. (Nov. 4 Hearing Tr. at 13).
23
Based on the call, Eagan believed that the Walker team still intended to seek to have their
case reassigned to Judge Thompson. (Aug. 4 Hearing Tr. at 36-37; Eagan Dec. at 5, ¶ 11). Eagan
asked the Walker team if they would want to remain in the Middle District if Walker stayed with
Chief Judge Marks, and she recalled that the team had not yet reached a decision on that question.
(Aug. 4 Hearing Tr. at 37).
The topic of Northern District judges came up in an April 13 call that took place between
the Ladinsky and Walker teams. This call occurred in the evening after Chief Judge Marks had
entered her show cause order earlier in the day. One question is this: why were the two teams
discussing Northern District judges during a call that the Walker team convened to hopefully drum
up support for Ladinsky counsel transferring their case to the Middle District and proceeding
before Judge Thompson? (See Aug. 3 Hearing Tr. at 215-16). But it was Eagan’s impression that
the Walker team wanted information about judges in the Northern District to assist in deciding
whether to oppose transfer. (Aug. 4 Hearing Tr. at 40).
Eagan acknowledged that during the call she “gave some viewpoints from [her] perspective
as to how [she] thought judges might receive this type of controversial case.” (Aug. 4 Hearing Tr.
at 38). She testified that she did not remember if she discussed every judge in the Northern District.
(Id.). And she testified that she could not remember specifically what she said about any particular
judge. (Id. at 38-39). She testified she “may have made some reference” to Judge Axon and Judge
Burke “because they were in the mix,” but “there was no reason that [she] would have singled out
Judge Axon or Judge Burke versus any other judge at that point.” (Id. at 42). Regardless, whether
she communicated these particular opinions on the call, she testified that Judge Axon would have
been a “favorable draw” and that Judge Burke was “toward the bottom of the list” if she ranked
the judges. (Id. at 47-48, 50).
24
Esseks denied wanting information about judges in the Northern District on the April 13
call and could not recall how the topic arose. (Id. at 215). He testified that the Ladinsky team, and
specifically Eagan, may have brought up potential judge assignments in their own case. (Id. at 214,
216, 218). Esseks testified that Eagan said on the call that Judge Burke “would not be a good draw”
or would be a “bad draw.” (Aug. 3 Hearing Tr. at 215, 218). He did not remember if those were
Eagan’s exact words, but that was “the gist of what she said.” (Id. at 214-15). Eagan’s impression
of Judge Axon was consistent with an email that Orr sent to Charles indicating that someone at
Lightfoot believed Judge Axon was a good draw at a time when “there was some research being
done, certainly about Judge Axon when [Walker] was still in the Middle District.” (Id. at 210-12).
Similarly, Nowlin-Sohl testified that the Ladinsky team talked about the Northern District
judges with the Walker team in terms of “who they might pull.” (May 20 Hearing Tr. at 115). On
the other hand, Eagan testified that Walker counsel wanted information from her about Northern
District judges on the April 13 call. (Aug. 4 Hearing Tr. at 38, 40). She testified that Walker
counsel was “interested in knowing what we knew about the judges in the Northern District” and
“they were curious or they wanted to know what input we could give to them about the judges in
the Northern District.” (Id.).
Shortnacy testified that another call took place on April 13 between at least himself, Esseks,
Charles, Orr, and Eagan. (Aug. 4 Hearing Tr. at 213-14; Shortnacy Dec. at 7-8, ¶ 8). According to
Shortnacy, someone from the Walker team convened the call as a sort of “meet and greet” with the
King & Spalding advocacy group to discuss common interests. (Aug. 4 Hearing Tr. at 213-14).
Shortnacy testified that someone from the Walker team asked for input on Chief Judge Marks’s
order to show cause. (Id.; Shortnacy Dec. at 7-8, ¶ 8). The King & Spalding attorneys said, and
confirmed after the call-in writing, that they took no position on the order or whether Walker
25
should be related to Corbitt and reassigned to Judge Thompson. (Aug. 4 Hearing Tr. at 214;
Shortnacy Dec. at 8, ¶ 8.c).
The Walker team shifted strategy the following day, Thursday, April 14, and decided to
not oppose transfer to the Northern District. (May 20 Hearing Tr. at 103; Aug. 3 Hearing Tr. at 41,
103-04). The Walker team believed that transfer was inevitable because of their impression of
Chief Judge Marks’s order and that the State agreed to the transfer. (Id.; Egyes Dec. at 6, ¶ 20).
So, on April 14, the Walker plaintiffs filed their response to the order to show cause in which they
withdrew their motion to reassign the case to Judge Thompson and stated, “Although this case was
properly filed in the Middle District, [p]laintiffs do not oppose transfer to the Northern District so
that this matter can be adjudicated alongside Ladinsky. Plaintiffs’ interest is in the expeditious
injunction of the unconstitutional law they challenge, and plaintiffs will seek to pursue their motion
for this preliminary relief expeditiously in the Northern District.” (Walker, 5:22-cv-480-LCB
(N.D. Ala.), Doc. # 18 at 3).
By April 14, it appeared to Soto that the Ladinsky team considered Judge Axon a “very
good draw,” Judge Manasco a “good draw,” and Judge Cornelius a “good draw.” (Soto Dec. at 60,
¶¶ 2-4). Soto explained that Judge Axon earned the “very” distinction because of local counsel’s
asserted familiarity with her. (Nov. 3 Hearing Tr. at 226, 228).
On April 15, Chief Judge Marks transferred Walker to the Northern District. (Walker, 5:22-
cv-480-LCB (N.D. Ala.), Doc. # 20). Around this time, Walker counsel believed that the case
would end up assigned to Judge Axon because she was assigned to Ladinsky and Chief Judge
Marks transferred Walker to the Northern District so that it could be adjudicated alongside
Ladinsky. (Aug. 3 Hearing at 63, 107, 109, 156; Esseks Dec. at 8, ¶ 24; Charles Dec. at 7-8, ¶ 25).
Contrary to counsel’s assumption, Walker was randomly assigned to Judge Burke on the morning
26
of April 15. The assignment seemed to surprise or confuse all Walker attorneys who were aware
of it. (May 20 Hearing Tr. at 103-04, 126; Aug. 3 Hearing Tr. at 46, 63, 109; Veroff Dec. at 15;
Egyes Dec. at 6, ¶ 21).
Around the time Walker arrived in the Northern District in the morning of April 15,
Hoverman Terry called the phone number for either Judge Axon’s chambers or her docket clerk
to ask about requirements for filing pro hac vice motions because the Ladinsky team was concerned
about providing attorneys’ home addresses on the motions. (Hoverman Terry Dec. at 6, ¶ 11; Aug.
4 Hearing Tr. at 159-60). She initially believed that she spoke with Judge Axon’s courtroom
deputy, (Hoverman Terry Dec. at 6, ¶ 11; Aug. 4 Hearing Tr. at 156), but later testified that she
may have actually spoken with someone else from Judge Axon’s chambers or her docket clerk
(Aug. 4 Hearing Tr. at 156-59). The staff member answered Hoverman Terry’s questions about
the pro hac vice motions and, according to Hoverman Terry, volunteered that she anticipated
Walker being assigned to Judge Axon. (Hoverman Terry Dec. at 6, ¶ 11; Aug. 4 Hearing Tr. at
160-61). Hoverman Terry conveyed that information to the Ladinsky team, after which, according
to Warbelow, “the collective assumption appeared to be that the assignment [of Walker to Judge
Burke] was temporary.” (Warbelow Dec. at 78,4 ¶ 13; see Nov. 3 Hearing Tr. at 39).
Soon after Walker was assigned to Judge Burke, Veroff contacted the Northern District
Clerk’s Office and the clerk told her that Ladinsky counsel would need to file a motion to
consolidate before Judge Axon in the Ladinsky case if the parties wanted to consolidate the cases.
(Veroff Dec. at 15; Charles Dec. at 8, ¶ 26). To coordinate their consolidation efforts, members of
both teams – including at least Hartnett, Charles, Levi, Egyes, and Nowlin-Sohl – attended and
4
The declarations of Warbelow, Levi, McCoy, Minter, Orr, Soto, and Weaver were submitted as a combined
PDF. The citations to any of those declarations refer to the pagination of the combined PDF, not the written page
numbers on each declaration.
27
participated in a conference call in the afternoon of April 15. (Aug. 3 Hearing Tr. at 63-64, 153;
Veroff Dec. at 15-16; Charles Dec. at 8, ¶ 25; Levi Dec. at 10; Egyes Dec. at 6, ¶ 21). During this
call, and based on other conversations around this time, the two teams understood that Ladinsky
counsel would have to file the motion to consolidate in their case. (Aug. 3 Hearing Tr. at 110;
Charles Dec. at 8, ¶ 26; Veroff Dec. at 15-16; Levi Dec. at 10, ¶ 15; Eagan Dec. at 6, ¶ 13).
Eagan testified that Charles emailed her a draft motion to consolidate at 3:17 p.m. for the
Ladinsky team to review and file. (Aug. 4 Hearing Tr. at 67-68; Eagan Dec. at 6, ¶ 13). At some
point around this time, the teams learned that the State was also preparing a motion to consolidate
the two cases. (Aug. 3 Hearing Tr. at 64, 69, 110; Aug. 4 Hearing Tr. at 69; Charles Dec. at 8,
¶ 27; Veroff Dec. at 16; Eagan Dec. at 7, ¶ 14). Hartnett informed the State that the Walker
plaintiffs would consent to the State’s eventual motion to consolidate, and Eagan did the same on
behalf of the Ladinsky plaintiffs. (Aug. 3 Hearing Tr. at 64-65; Aug. 4 Hearing Tr. at 69-71; Eagan
Dec. at 7, ¶ 14). As the state made final preparations to file the unopposed motion to consolidate,
Ladinsky was transferred by Judge Axon to Judge Burke. Attorneys for the state of Alabama
indicated that they no longer planned to file a motion to consolidate. Other than phone conferences
between the Ladinsky and Walker teams, no other events occurred between the transfer of Ladinsky
to Judge Burke and the dismissal of the Ladinsky and Walker actions. That is, less than three hours
after the transfer of Ladinsky to Judge Burke, both cases were dismissed.
D. Counsel’s Response to Judge Axon Transferring Ladinsky to Judge Burke
At 4:07 p.m. on April 15, Judge Burke entered the order in Walker setting the case for a
status conference on the following Monday, April 18, at 10:00 a.m. in Huntsville. (Walker, 5:22-
cv-480-LCB (N.D. Ala.), Doc. # 22). As Judge Burke specifically stated, “The purpose of the
28
hearing is to discuss the status of the case, not to argue the merits of the motion for injunctive
relief.” (Id.).
Shortly thereafter, at 4:41 p.m., Judge Axon entered the order in Ladinsky transferring
Ladinsky to Judge Burke “[i]n the interest of efficiency and judicial economy.” (Ladinsky, 5:22-
cv-447-LCB (N.D. Ala.), Doc. # 14). The Panel explained at the May 20 hearing that Judge Axon
transferred Ladinsky because she was then “on day four of what was scheduled to be a two-plus-
week criminal trial, an 18-defendant case with four defendants at trial, and quite a lot of moving
parts in that criminal case. And based upon judicial efficiency and economy, Judge Burke took the
case. Judge Axon would not have had the judicial resources to start the case right away …. [T]here
was a simple determination that we would have the judge who could handle the case and wasn’t
in a long criminal trial to handle that case.” (May 20 Hearing Tr. at 33). Every attorney who
testified on the matter stated that they were not aware of Judge Axon’s criminal trial on April 15
or that the trial was a reason for transferring the case to Judge Burke.
To borrow some of the attorneys’ words, members of both teams were immediately
“surprised,” “confused,” “concerned,” “in a bit of a panic,” and thrown into “a pretty hectic” and
“chaotic” state by Judge Axon transferring Ladinsky to Walker. (See, e.g., May 20 Hearing Tr. at
104; Aug. 3 Hearing Tr. at 109, 226; Aug. 4 Hearing Tr. at 63, 77, 177, 242; Veroff Dec. at 16;
Eagan Dec. at 8, ¶ 16; Hoverman Terry Dec. at 8, ¶ 13). In general, the lawyers stated concern that
Ladinsky was the first-filed case but was being transferred to the judge who had the second-filed
case, Ladinsky would possibly lose its position as the lead case, they did not have an opportunity
to respond to the order, and they had always assumed from Chief Judge Marks’s order to show
cause that Walker was transferred to the Northern District so that it could eventually be
consolidated with Ladinsky. (See, e.g., Hoverman Terry Dec. at 8-9, ¶ 13; Shortnacy Dec. at 9,
29
¶ 9.b; Levi Dec. at 12, ¶ 19; McCoy Dec. at 28-29, ¶¶ 24-26; Minter Dec. at 37, ¶ 5; Orr Dec. at
53, ¶ 19; Warbelow Dec. at 78, ¶ 15).
For example, Eagan testified that she was surprised and concerned by the order because it
seemed “contrary to the established process in the Northern District relating to first-filed cases and
consolidation of related matters—procedures [she] assumed were intended to protect the random
assignment of cases.” (Eagan Dec. at 8, ¶ 16). Additionally, she testified, “I was concerned, as the
Ladinsky matter was transferred to the judge with the second-filed case (which was pending in the
Northeastern Division/Huntsville), without any notice, explanation, or opportunity for the parties
to respond. Moreover, I was also concerned that Ladinsky, the first-filed case, was potentially
losing its position as the lead case to Walker.” (Id.). She called the transfer “inexplicable,” in
violation of “established procedure,” and without “any acceptable means.” (Id. at 9, ¶ 18; see also
Aug. 4 Hearing Tr. at 63, 77).
Similarly, Doss testified that the Transfer Order was “surprising and concerning.”
[I]t has long been the practice in the Northern District that, when there are two
related cases, a motion to consolidate must be filed in the first-filed case and then
the cases, if they are consolidated, are consolidated before the first-filed case’s
judge.
(Doss Dec. at 7, ¶¶ 22-24; see also Aug. 4 Hearing Tr. at 239-42, 253-55). Doss further indicated
that the stated reason – “efficiency and judicial economy” – did not make sense to him. (Id. at ¶
23). So, as Doss claims he concluded,
“the standard procedure, which had been recognized by the Court for many years,
was not followed. Given the political sensitivities of the Ladinsky Litigation, it gave
me concern that there was an appearance of a different procedural rule being
applied to the case. . . .”.
(Id. at ¶ 24).
30
McCoy and others testified to an additional, and more troubling, concern: they suspected
that Judge Burke reached out to obtain the Ladinsky case. (McCoy Dec. at 28-29, ¶ 25; Nov. 3
Hearing Tr. at 61, 90-91, 185-87, 232). Barry Ragsdale, counsel for some of the attorneys in this
inquiry, stated, “It scared people. It looked to me and to others like Judge Burke had reached out
to get the case” (see May 20 Hearing Tr. at 133); “[T]here was a risk – I think a small risk, certainly
probably a very small risk, with hindsight – that [the transfer] had occurred because Judge Burke
had reached out for the case” (June 17 Conference Tr. at 5-6). According to Eagan, she heard
“some people” from either or both teams wonder if Judge Burke “reached out and snagged this
case because he wants it.” (Aug. 4 Hearing Tr. at 136-37).
Counsel note they were never informed of Judge Axon’s criminal trial. But, even if counsel
had questions about that process, those questions do not even come close to justifying counsel’s
wholly unwarranted suspicions regarding why the case was assigned to Judge Burke.
E. Discussions About Voluntarily Dismissing Walker and Ladinsky
Less than one-half hour after Judge Axon’s transfer order was entered, lead counsel and
other members of both litigation teams convened a conference call. The Panel cannot determine
a complete roster of attendees, but at least Nowlin-Sohl, Hartnett, Minter, Eagan, Doss, Vague,
Hoverman Terry, Shortnacy, and Soto participated. (May 20 Hearing Tr. at 125-26; Aug. 3 Hearing
Tr. at 77; Aug. 4 Hearing Tr. at 77-79, 167-68, 239-40; Minter Dec. at 42, ¶ 12; Soto Dec. at 70,
¶ 36).
The purpose of the call was for the attorneys to determine how they should respond to the
transfer order.5 Eagan testified that the conference call may have lasted less than 30 minutes. (Aug.
5
Someone floated the idea of filing a motion to reconsider the transfer. (Aug. 4 Hearing Tr. at 241). However,
once it became clear that Judge Burke would be the judicial officer tasked with deciding the motion to reconsider,
31
4 Hearing Tr. at 105-06). Before, during, and after the 5:00 p.m. conference call, several other
discussions took place among the various groups within each team to discuss next steps. (See, e.g.,
Nov. 3 Hearing Tr. at 45-46). Shortly after the conference call ended and less than two hours after
the transfer of Ladinsky to Judge Burke, both Ladinsky and Walker were dismissed.
Before the 5:00 p.m. conference call, Orr and Minter had a one-on-one call. (Nov. 3
Hearing Tr. at 46, 139-40). On that call, according to Orr, Minter brought up the idea of dismissing
Ladinsky. (Id. at 49-50). Minter testified that he thought about dismissing “right away” after the
transfer order. (Id. at 139). Orr told Minter that dismissing Ladinsky could be perceived as judge
shopping. (Id. at 49-50). They also discussed their concerns about how Judge Burke would analyze
their claims based on his prior opinions on the Alabama Court of Criminal Appeals and his prior
political affiliations. (Id. at 52, 73). The call ended with Orr having the impression that it was
Minter’s opinion that they should dismiss Ladinsky. (Id. at 53).
Turning back to what the lawyers specifically discussed during their conference call that
Friday afternoon, the lawyers first shared with each other their confusion and concerns with respect
to Judge Axon transferring Ladinsky to Judge Burke (for the reasons discussed above). (See, e.g.,
May 20 Hearing Tr. at 104; Aug. 3 Hearing Tr. at 75-77; Aug. 4 Hearing Tr. at 77-79, 240-41).
The attorneys also discussed concerns related to the timing of the transfer order and the
status conference scheduled for the morning of Monday, April 18. Multiple out-of-state attorneys
testified they were concerned about traveling to Huntsville over Easter weekend (despite having
local counsel in Alabama), and the Birmingham attorneys testified they were caught off guard by
having to appear in Huntsville instead of the courthouse in Birmingham. (May 20 Hearing Tr. at
counsel did not pursue this option because of a concern that it might communicate to Judge Burke that they did not
want him as the judge. (Id. at 89, 140-41, 241).
32
106, 109-21, 152-53, 164, 170; Aug. 3 Hearing Tr. at 75; Aug. 4 Hearing Tr. at 81, 136). Borelli
testified that the Walker team was concerned that the two teams might not be prepared to discuss
the merits of the preliminary injunction on such short notice. (Aug. 3 Hearing Tr. at 121).
Similarly, Strangio testified that he thought the teams would not be adequately prepared for the
status conference. (May 20 Hearing Tr. at 166). And Esseks testified that he was not sure whether
the Walker team could express a clear vision for how the two cases would move forward together.
(Aug. 3 Hearing Tr. at 206-07).
No attorney even seriously considered contacting Judge Burke’s chambers to ask if they
could attend the status conference remotely. (Aug. 3 Hearing Tr. at 70-71, 126-27). Harnett and
Borelli hesitated to do so because Judge Burke’s order setting the status conference did not contain
remote call-in information and they were concerned they might not reach chambers after the close
of business hours on a Friday afternoon. (Id. at 70-71).
Also, even though the two sides had just agreed to have the cases consolidated, some (and,
to be clear, not all) counsel now claim that it would have been very difficult for the two teams to
work together. (May 20 Hearing Tr. at 103-05, 125-26, 165-66, 170-71, 188; Aug. 3 Hearing Tr.
at 52-53, 55, 88-89, 173-75, 208-09; Esseks Dec. at 12, ¶ 8). It is primarily the Walker counsel
who contend there were issues with coordination and collaboration. They claim the two teams did
not have a unified front as to legal theories or a hierarchy of command and control. (Aug. 3 Hearing
Tr. at 52-53, 55, 113-14, 203, 208-09, 222). They assert it was daunting, if not impossible, for 39
lawyers across 11 organizations to coordinate and cooperate with each other, especially
considering the clear discord between certain lawyers. (May 20 Hearing Tr. at 125-26, 165, 170-
71; Aug. 3 Hearing Tr. at 88-89, 161-62, 173-75, 200-03; Esseks Dec. at 12-13, ¶¶ 8-9). Hartnett
testified that the potential divisions between the two teams were apparent even before April 15.
33
(Aug. 3 Hearing Tr. at 52-53, 55). Likewise, Esseks testified that the difficulties of working
together were apparent as early as 2020. (Id. at 201-02). Esseks testified that Levi and Minter were
particularly difficult to work with because of their personalities and strong opinions. (Id. at 203-
04, 222). Yet, the two sides had just agreed with the State to consolidate the two cases.
The Ladinsky team did not share these concerns to the same degree. They claim their
primary concern was maintaining their first-filed case status. (See, e.g., Nov. 3 Hearing Tr. at 266).
Walker had a pending motion for preliminary injunction and Ladinsky did not. And Walker, not
Ladinsky, had been set for a status conference. So, it seemed to the Ladinsky team that the case
might lose its status as the lead case if the cases were consolidated. (Aug. 4 Hearing Tr. at 77, 242;
Nov. 3 Hearing Tr. at 56, 145; Nov. 4 Hearing Tr. at 19).
Attorneys compared their impressions of Judge Axon and Judge Burke. The attorneys’
testimony was consistent: Judge Axon was viewed as a good draw for their cases and Judge Burke
was not. (See, e.g., Shortnacy Dec. at 10, ¶ 9.f; Hoverman Terry Dec. at 9-10, ¶ 13.e; Levi Dec. at
12-13, ¶ 9; Warbelow Dec. at 78, ¶ 18; Soto Dec. at 60, ¶ 4; Aug. 4 Hearing Tr. at 77-79, 179, 218,
249; Nov. 3 Hearing Tr. at 151, 185-87, 191-94, 269). Hoverman Terry testified that, on the Friday
afternoon conference call, a Lightfoot attorney expressed that Judge Axon was “a good draw” or
“a great draw.” (Aug. 4 Hearing Tr. at 179). Quite significantly, she testified that Eagan told those
on the call “that there was zero percent chance that Judge Burke would grant our motion if we filed
a PI motion before him in this case.”6 (Id. at 179-80). Someone apparently forwarded a webpage
to counsel stating that Judge Burke had a portrait of Jefferson Davis in his state court chambers
before he was nominated to the federal bench, which everyone took as evidence of unfavorable
conservative leaning. (Aug. 3 Hearing Tr. at 227; Aug. 4 Hearing Tr. at 180-81). Even during the
6
As it turns out, Judge Burke awarded significant interim relief to plaintiffs in Ecknes-Tucker. This led one
member of the Panel to note that it is fortunate for Eagan that she was not an Old Testament prophet.
34
course of that conference call, a strategy was being considered. When an attorney mentioned
potentially refiling in the Southern Division, Eagan stated that Judge Burke does not draw from
the Southern Division. (Aug. 4 Hearing Tr. at 183-84).
Charles testified that “general information . . . publicly available,” and research conducted
by others, suggested to the ACLU team that Judge Burke was not a good draw. (Aug. 3 Hearing
Tr. at 164-65). Charles testified that Orr “mentioned that [Judge Burke] was a judge that they did
not want.” (Id. at 165).
Levi testified that she “was part of communications among lawyers on the Ladinsky team
in which they said that they had concerns about the prospects of our case before Judge Burke.”
(Levi Dec. at 12-13, ¶ 9). Levi testified, “Judge Burke was not considered a good draw for our
case.” (Id. at 13, ¶ 19). And, Levi recalled being informed by someone at some point that Judge
Axon was a good draw because she had children. (Nov. 4 Hearing Tr. at 22).
Eagan testified that, on the Friday afternoon conference call, people were concerned “how
receptive [Judge Burke] would be to [their] clients and to the issues in the case.” (Aug. 4 Hearing
Tr. at 77). Eagan testified that she “was concerned as to what his personal perspectives might be.”
(Id. at 78). But, when specifically asked about the phone call, Eagan did not admit that she had
said about Judge Burke that there was a “zero percent chance” they would have of succeeding
before him.
Minter testified about learning on the call “that Judge Burke was considered a very
conservative judge who might turn out to be a particularly bad draw for our case. That was not
because of any concern that he would be personally biased, but rather that a conservative judge
might not be receptive to our legal arguments, which rested on substantive due process and the
premise that discrimination against transgender people is sex discrimination. The fact that Judge
35
Burke was considered a very conservative judge increased my concern . . . .” (Minter Dec. at 38,
¶ 6). On the other hand, Minter recalled discussions about Judge Axon being sympathetic to their
case because she worked with organizations that worked with children and she had children
herself. (Nov. 3 Hearing Tr. at 148).
Minter confirmed that the attorneys compared their impressions of Judge Burke and Judge
Axon on either the Friday afternoon conference call between members of both teams or the
conference call among Ladinsky team members. (Id. at 151). Minter also testified that, before the
cases were dismissed, “there was some thought about . . . if we’re thinking Judge Burke is not a
good draw, we probably don’t want to [re-]file in his division.” (Id. at 157).
Orr testified about communicating to the Walker team at some point that he did not have
positive impressions of Judge Burke “based on an initial review of some of his opinions prior to
joining the federal bench and information regarding his political affiliations prior to becoming a
judge.” (Orr Dec. at 52-53, ¶ 17). On the flip side, Orr testified that he shared with the Walker
team that Judge Axon was a good draw. (Nov. 3 Hearing Tr. at 29, 31). Orr testified that he
received the favorable impression of Judge Axon from Eagan, Doss, or both. (Nov. 3 Hearing Tr.
at 31-33). Orr testified that Eagan had mentioned to him at some point that her husband practiced
law with Judge Axon’s husband and that Judge Axon would be a favorable draw because she has
children. (Id. at 33-34). And Orr recalled that someone said on a conference call between members
of the Ladinsky team on Friday, April 15 that Judge Burke may have reached out to take Ladinsky.
(Id. at 61).
Esseks learned from an email sent by Orr to Charles and from a separate call that the
Lightfoot group thought that “Judge Axon was in their view a good draw, and that Judge Burke
would not be a good draw.” (Aug. 3 Hearing Tr. at 211-13).
36
McCoy testified that he heard from Lightfoot counsel that Judge Axon was a good draw
for them in part because of the fact that Judge Axon has children. (Nov. 3 Hearing Tr. at 118-19).
McCoy remarked on a conference call with the Ladinsky team on Friday, April 15 that Judge Burke
may have reached out for Ladinsky. (Id. at 185-87).
Shortnacy testified “there were reservations expressed about Judge Burke; that he was a
conservative judge. We had a politically charged issue on our hands, and whether or not he was
the best draw was a question.” (Aug. 4 Hearing Tr. at 218).
Every attorney who testified on these matters acknowledged that their perceptions of Judge
Burke and their chance of success before him was a factor in deciding to dismiss the two cases.
They contend, however, that it was not the only factor. These assertions, which ring hollow, took
various forms.
For example, Nowlin-Sohl testified that she “was not saying [Judge Burke] ha[d] nothing
to do” with dismissing Walker. (May 20 Hearing Tr. at 105). In other words, Judge Burke’s
assignment “was a factor, but it . . . wasn’t the factor.” (Id. at 109).
Charles first testified that Judge Burke’s assignment was a factor in dismissing Walker only
to the extent that “he was unknown to [ACLU of Alabama]” and they “had not done any research
and were . . . unaware of any of the judges in the Northern District.” (May 20 Hearing Tr. at 189).
However, Charles then testified that Judge Burke’s assignment was a factor (actually he admitted
it was “not not a factor”) because they “understood in a very general way that Judge Burke is more
conservative, and we were concerned about his openness to our plaintiffs’ claims.” (Aug. 3
Hearing Tr. at 163-64).
Eagan testified, “[D]id we also consider that Judge Burke was the person that it had been
assigned to? Yes, that was in my mind, too, but that wasn’t the primary driving factor that day.”
37
(Aug. 4 Hearing Tr. at 81). Egan admits she did consider her “viewpoints on how Judge Burke
would potentially receive these issues. That was a factor that was in my mind when we did the
dismissal. It was not the driving factor.” (Id. at 93).
Shortnacy testified that a factor in deciding to dismiss was “reservations expressed about
Judge Burke” as a “conservative judge” and “whether or not he was the best draw.” (Aug. 4
Levi testified that her impression of Judge Burke was a factor in deciding to dismiss but
not the exclusive factor. (Nov. 4 Hearing Tr. at 20-21).
Doss testified that the Ladinsky team, in deciding to dismiss, “took into account [Judge
Burke] under” the “very unusual circumstance” of a “politically sensitive case” with “an
appearance of a deviation from the rule of how the first filed case procedure would work.” (Aug.
4 Hearing Tr. at 242).
Ray specifically testified that the Lightfoot firm thought that something was “amiss” based
on that transfer order. (Aug. 4 Hearing Tr. 197-98). Doss testified that “it had the appearance that
the case was being almost pulled over” to Judge Burke. (Id. at 268). And, one of the lawyers’
lawyers, Barry Ragsdale, told the panel that he told Franklin that he viewed the transfer as
“suspicious.” (May 20, 2022 Tr. at 129). Eagan also testified that if Judge Axon had transferred
the case to “one of the judges that [Lightfoot] viewed at the top” of the list of Northern District
judges who “might be receptive to [their] clients’ claims” (rather than to Judge Burke), she did not
know whether she would have dismissed Ladinsky. (Id. at 138).
The suggestion that the dismissals occurred primarily because counsel thought something
was awry with the transfer to Judge Burke is difficult to reconcile with the undisputed facts that
(1) the dismissals did not fit with the posture of the extremely time-sensitive case at all (i.e.,
38
Ladinsky counsel had won the race to the courthouse, consented to consolidation, and was
feverishly drafting a motion seeking injunctive relief; Walker had consented to transfer and
consolidation and filed a motion for a TRO); (2) the dismissals were a hairpin reversal of decisions
(made both just before the transfer and going back a number of years) about how the litigation
would move forward; and (3) the event that immediately preceded that hairpin reversal was the
transfer of Ladinsky to Judge Burke instead of a transfer of Walker to Judge Axon.
Plaintiffs’ counsel have also noted that while they did not like Judge Burke as the judge, it
seemed to them that the State did. They base this conclusion on the fact that shortly after the
transfer order was entered, the State emailed Eagan informing her that the State would no longer
file its motion to consolidate Walker with Ladinsky before Judge Axon. (Aug. 4 Hearing Tr. at 73-
74; Eagan Dec. at 8, ¶ 17). Some of the counsel took this to mean that the State preferred Judge
Burke and wanted to lock the two cases before Judge Burke by quickly filing an answer. (Aug. 3
Hearing Tr. at 226-27; Aug. 4 Hearing Tr. at 73-76; Nov. 3 Hearing Tr. at 69-70; Nov. 4 Hearing
Tr. at 39-40). Of course, that “theory” does not account for the fact that there apparently was no
longer a need to seek consolidation of cases that were by then already assigned to the same judge.
Minter suggested – and the leaders of each organization agreed – that they voluntarily
dismiss their cases and undertake planning to refile a new case. (Minter Dec. at 38, ¶ 6; Esseks
Dec. at 13-14, ¶¶ 40-41; Aug. 3 Hearing Tr. at 77-78; Aug. 4 Hearing Tr. at 79). Warbelow testified
(and this was consistent with each lawyer’s recollections of the conversations on Friday, April 15)
that Levi, Minter, Eagan, and Doss drove the decision to dismiss and refile. (Nov. 3 Hearing Tr.
at 270).
The lawyers discussed how they had an unconditional right to voluntarily dismiss their case
under Federal Rule of Civil Procedure 41(a)(1)(A)(i) because the State had not filed an answer or
39
moved for summary judgment.7 (Aug. 3 Hearing Tr. at 80, 82-84; Eagan Dec. at 9, ¶ 18). It is
telling that the attorneys moved so quickly from being eager to challenge the statute and obtain a
preliminary injunction for their clients as soon as possible to the sudden decision to dismiss their
cases to “regroup.” (Levi Dec. at 14, ¶ 22; Eagan Dec. at 10, ¶ 20; Doss Dec. at 9, ¶ 27; Minter
Dec. at 38, ¶ 6; Aug. 3 Hearing Tr. at 75-78, 85-86, 117; Nov. 4 Hearing Tr. at 29-30, 34, 45-46).
There are also a number of holes in counsel’s various explanations about the decision.
Levi testified that she and Hartnett were on a phone call on Friday, April 15 when Harnett
“agreed that the Walker team would also dismiss their case” and that the teams would then “join
forces.” (Nov. 4 Hearing Tr. at 30). Levi and Hartnett “had some conversations about what the
composition of that [new] case would look like, about where it was filed,” and Hartnett
“represented to [Levi] that . . . that conversation would have to happen among more attorneys from
the Walker case, . . . but we would all be quickly moving forward, joining forces to file a new
case.” (Id.).
Hartnett’s testimony suggests that the Ladinsky team reached the decision to dismiss their
case before the Walker team did. That is, Hartnett testified that she was on a Zoom call with
members of the Walker team around 5:00 p.m. on Friday and, during the call, received information
from the Ladinsky team that they were considering dismissal. (Aug. 3 Hearing Tr. at 75-77, 80,
82-84; see also Egyes Dec. at 9, ¶ 32). She spoke with Minter about the Ladinsky team’s decision,
and then reported back to the Walker team that the Ladinsky team wanted to dismiss their case.
(Id.). The Walker team then decided to dismiss in coordination with Ladinsky. (Aug. 3 Hearing Tr.
at 75-76; Egyes Dec. at 9, ¶ 32). However, Walker counsel did not request permission to dismiss
7
Apparently, the lawyers hang one hat on the language of Rule 41 and contend that the court no longer has
jurisdiction over a case voluntarily dismissed before the filing of an answer or Rule 56 motion. Even if that is so, the
courts here – the Middle and Northern Districts of Alabama – nevertheless have jurisdiction over the attorneys.
40
from their clients, or even inform their clients of the dismissal until after it was filed. (May 20
Hoverman Terry testified, “There was mention from I believe Lightfoot on the April 15
call about potentially filing in the Southern Division of the Northern District because of the
judges.” (Id. at 183-84). She also testified that Eagan said on a Friday evening call that Judge
Burke does not draw from the Southern Division. (Id. at 184). Eagan testified that she talked with
Doss on Friday evening about Northern District and Middle District judges and how they would
receive the issues in their next case. (Id. at 92-93).
Eagan testified that it was crucial to the Ladinsky team that Walker be dismissed before
Ladinsky. (Eagan Dec. at 9-10, ¶ 19; Aug. 4 Hearing Tr. at 94; Nov. 4 Hearing Tr. at 31). The
Ladinsky team did not want to dismiss their case only for Walker to proceed, and the Ladinsky
team wanted to re-file a new case to regain the first-filed status they were concerned they had lost.
(Eagan Dec. at 9, ¶ 19; Aug. 4 Hearing Tr. at 94-95). Minter testified that it was an implicit
assumption that Walker dismissing first was a condition for Ladinsky’s dismissal. (Nov. 3 Hearing
Tr. at 154-55). Eagan made clear that was a condition of the dismissal of Ladinsky. (Aug. 3 Hearing
Tr. at 85-86). To be sure, the Walker team understood that both cases would be dismissed in
coordination so both teams could regroup later. (See, e.g., Aug. 3 Hearing Tr. at 75-77, 85-86,
117). So, Eagan “coordinated the filing of the notices of dismissal with Walker counsel, where
Walker would be filed first and the Ladinsky dismissal would be filed within minutes after Walker.”
(Eagan Dec. at 10, ¶ 19).
The testimony made clear that only some of the plaintiffs were informed by their attorneys
that their cases were being dismissed. (See Aug. 3 Hearing Tr. at 166; Aug. 4 Hearing Tr. at 105-
06; Nov. 3 Hearing Tr. at 57, 120, 185). But, in some instances, that news was not delivered until
41
after dismissal. Charles testified that he informed the White family plaintiffs in Walker that their
case would be dismissed “[i]mmediately after” Walker counsel made that decision. (May 20
Hearing Tr. at 180-81). Borelli testified that she did not participate in client phone calls, but she
understood that “calls were made to the clients that weekend . . . to discuss the events that had
occurred” and their “view of how things should proceed after [their] communications with the
other team.” (Aug. 3 Hearing Tr. at 117). On the other hand, Orr contacted the Ladinsky plaintiffs
and received their consent to dismiss. (Nov. 3 Hearing Tr. at 57, 120, 125; see Aug. 4 Hearing Tr.
at 104). And Weaver informed her client, who was not at that time a plaintiff in Ladinsky (but
eventually was named a plaintiff in Eknes-Tucker), that Ladinsky was being dismissed. (Nov. 3
At 6:24 p.m. on Friday, April 15, the Walker plaintiffs filed their notice of voluntary
dismissal. (Walker, 5:22-cv-480-LCB (N.D. Ala.), Doc. # 23). At 6:33 p.m., the Ladinsky plaintiffs
filed their notice of voluntary dismissal. (Ladinsky, 5:22-cv-447-LCB (N.D. Ala.), Doc. # 15).
A particularly revealing fact is that Minter suggested within minutes of the transfer order
on his one-on-one call with Orr that they dismiss Ladinsky. (Nov. 3 Hearing Tr. at 48). Minter and
Orr hypothesized with Eagan how Judge Burke might analyze their claims from a political
perspective. (Id. at 52, 57). Orr cautioned Minter about the appearance of judge shopping. (Id. at
49). That counsel wanted to avoid Judge Burke is the only logical explanation of these and the
other events discussed in this opinion, including the degree, speed, and substance of counsel’s
reaction to the transfer order.
F. Filing Eknes-Tucker
On the morning of Saturday, April 16, 2022, leadership from both teams – including
Esseks, Minter, Levi, Camilla Taylor from Lambda Legal, and Egyes – had a phone call to discuss
42
the possibility of refiling a single case together. (Esseks Dec. at 14, ¶ 43; Levi Dec. at 15, ¶ 25;
Egyes Dec. at 10, ¶ 33; Borelli Dec. at 12, ¶ 39; Aug. 3 Hearing Tr. at 88-89, 115, 161-62, 203-
04; Nov. 4 Hearing Tr. at 46-47). The call was fruitless and acrimonious. For example, Esseks
testified, “Early in the call, it became apparent to me that due to complicated relationship dynamics
among team members of the many involved organizations and differences of opinion concerning
case strategy and decision-making structure, it would be extremely challenging for the ACLU to
move forward in partnership with the former Ladinsky counsel to file a new case.” (Esseks Dec. at
14, ¶ 43). He also testified that Levi and Minter were particularly difficult on the call. (Aug. 3
Hearing Tr. at 203-04, 230-31). Levi testified, “It was quickly apparent that we could not agree on
many things, including where to file a new case, who the plaintiffs would be, and how
disagreements among counsel would be resolved. We concluded the call with no final agreements
made.” (Levi Dec. at 15, ¶ 25). And, Charles testified that Taylor reported to him that within
moments “the call” disintegrated into shouting and other unpleasantries. (Aug. 3 Hearing Tr. at
162).
Levi was the only lawyer who testified that the appearance of judge shopping came up
during the Saturday morning call. (See Nov. 4 Hearing Tr. at 46). She testified that one of the
Walker lawyers suggested they should take steps to ensure their potential next case did not look
like judge shopping. (Id.).
According to Esseks, after the Saturday morning call, members of the Walker team
discussed whether they should proceed with the Ladinsky team in filing a new case. (See Aug. 3
Hearing Tr. at 230-36). They discussed which plaintiffs they might name in a new case, which
subset of attorneys should participate, whether to file suit in the Northern District or the Middle
District, and, if they were to file in the Northern District, whether they should file suit in the
43
Southern Division or the Northeastern Division. (Aug. 3 Hearing Tr. at 234-36). Esseks admitted
that was a judge-based decision. (Id.). The Walker attorneys ultimately decided to not file a new
case and to not be involved with the Ladinsky team’s next case. (Aug. 3 Hearing Tr. at 231-33;
Esseks Dec. at 14, ¶ 43).
In the evening of Saturday, April 16, a reporter for AL.com asked Eagan via email whether
there were plans to refile the lawsuit. (Eagan Dec. at 11, ¶ 22); see Paul Gattis, “Lawsuits Seeking
To Overturn New Alabama Transgender Law Dropped, Could Be Refiled.” AL.com (Apr. 16,
2022, 5:43 p.m.), https://www.al.com/news/2022/04/lawsuits-seeking-to-overturn-new-alabama-
transgender-law-dropped-could-be-refiled.html. Eagan responded, “We do plan to refile
imminently, to challenge this law that criminalizes medical treatment accepted as the standard of
care in the medical profession and deprives parents of their right to choose such medical care for
their children.” (Id.). Eagan testified that she made that statement because the Attorney General
“was already making comments in the press about the dismissal, and we wanted the message to be
clear that the fight was not done, and we were sending that message to those people who were
impacted by this law that had been passed.” (Aug. 4 Hearing Tr. at 91; see Eagan Dec. at 11, ¶ 22).
The Ladinsky team worked through the weekend to prepare their new case. (See Aug. 4
Hearing Tr. at 231-32; Nov. 3 Hearing Tr. at 167; Doss Dec. at 10, ¶ 30; Eagan Dec. at 11-12,
¶ 23; Levi Dec. at 15-16, ¶¶ 26-27). Two of their most important decisions were which plaintiffs
to use and where to file their new case. (Levi Dec. at 15-16, ¶¶ 26-27; Doss Dec. at 10-11, ¶¶ 30-
32; Eagan Dec. at 11-12, ¶ 23). Levi had the “strong view” that they should use all new plaintiffs:
“While I believed the Ladinsky plaintiffs had an absolute right to dismiss their claims, and my
initial research led me to believe it would not be unethical to re-file the same case with the same
plaintiffs, in an abundance of caution I thought it would be preferable to file a new case with new
44
plaintiffs.” (Levi Dec. at 15-16, ¶ 26). Likewise, Eagan was concerned that they would be accused
of judge shopping if they filed a new action with the same plaintiffs. (Eagan Dec. at 12, ¶ 23).
Doss agreed to use new plaintiffs to “dispel any concern that there was any sort of impropriety that
had occurred.” (Aug. 4 Hearing Tr. at 246). And, Minter recalled that someone mentioned on
Saturday that they should use new plaintiffs to avoid the appearance of judge shopping. (Nov. 3
Once the decision was made to refile, the question became what would be filed and where.
The decision was made to file a suit with all new plaintiffs. There were concerns stated by counsel
that if the case were refiled with the same plaintiffs that would look like they were judge shopping.
The Ladinsky leadership initially discussed whether they should file in the Northern District. (Aug.
4 Hearing Tr. at 183-84, 233-35; Eagan Dec. at 12, ¶ 23; Ray Dec. at 7, ¶ 10). Shortnacy testified
that someone on the Ladinsky team – he initially thought it was Eagan, but then could not recall –
said on Friday evening that “it would less likely be assigned to [Judge Burke]” if they filed in the
Southern Division of the Northern District.8 (Aug. 4 Hearing Tr. at 235).
Levi told the team that they should not file in the Northern District because of “the concerns
that our team had about the unusual transfer of the Ladinsky case to the judge presiding over the
second-filed case.” (Levi Dec. at 16, ¶ 27). She “thought that filing the new case in the Northern
District of Alabama created a high risk that the case would be reassigned to the judge to whom the
Ladinsky and Walker cases had eventually been assigned.” (Id.). Eagan did not want to file in the
Northern District because she “was concerned that if we were to file in the Northern District, the
8
Eagan claimed at the hearing that when she filed Ladinsky in the Southern Division of the Northern District
she believed that it was a possibility that Judge Burke would draw it. (Aug. 4 Hearing Tr. at 93). But, Terry stated
that, after Ladinsky was dismissed, there were conversations about whether to refile in the Southern Division of the
Northern District to avoid Judge Burke. Terry testified that Eagan told the group that Judge Burke did not draw cases
from the Southern Division. (See id. at 184; accord id. at 235 (recollection to the same effect by King & Spalding
attorney Shortnacy, hesitating whether Eagan was the person who made the representation)).
45
case could be taken out of the random assignment process and assigned to Judge Burke,
considering the events of April 15, and all our questions about how Ladinsky ended up before
Judge Burke remained unanswered.” (Eagan Dec. at 12, ¶ 23; see also Aug. 4 Hearing Tr. at 109).
Similar to their concerns with using the same plaintiffs, the Ladinsky team was aware that
refiling in the same district could look like judge shopping. For example, Soto testified that McCoy
shared with him a text message from Minter indicating that the Lightfoot attorneys thought they
should file in the Middle District to avoid the impression that they were judge shopping. (Nov. 3
Hearing Tr. at 240-41). Similarly, Orr testified that Minter told him on Saturday, April 16 that they
would file their new case in the Middle District with new plaintiffs because they did not want to
give the appearance of judge shopping. (Id. at 62-63).
The Ladinsky team claims they ultimately settled on the Middle District. (See, e.g., McCoy
Dec. at 31, ¶ 30; Minter Dec. at 42, ¶ 10; Doss Dec. at 11, ¶ 32; Nov. 3 Hearing Tr. at 206-07, 275-
76; Nov. 4 Hearing Tr. at 35-36). McCoy testified that the new parties resided in the Middle
District and counsel was “worried about drawing Judge Burke again because we were uncertain as
to whether he was associated with procedural irregularities.” (McCoy Dec. at 31, ¶ 30; see Nov. 3
Hearing Tr. at 197-98). Minter testified that they filed in the Middle District “because many of our
plaintiffs were there and because of our concerns about the prior departure from the first-filed rule
in the Northern District.” (Minter Dec. at 42, ¶ 10; see also Nov. 3 Hearing Tr. at 162). These
claims -- that the decision about where to file Eknes-Tucker was driven by the identity of the newly
selected plaintiffs -- are difficult to square that with the fact that most of the Eknes-Tucker plaintiffs
(i.e., four out of seven) reside in the Northern District. And, even if all severed new plaintiffs had
been from the Middle District, counsel decided to start from scratch and select new clients, which
they hoped would not raise an inference of judge shopping.
46
Eagan testified filing in the Middle District “might [make it] more likely to go into the
random selection process and get a randomly selected judge,” and avoid being “right back where
we were on Friday afternoon, which is outside of the random selection process, . . . with these
unanswered questions.” (Aug. 4 Hearing Tr. at 109). Warbelow testified that it was not “Judge
Burke himself so much as what happened that resulted in the cases being transferred to him.” (Nov.
3 Hearing Tr. at 275-76). And Doss provided this explanation for filing in the Middle District:
Our concern was if we were to file a new lawsuit in the Northern District, it gets
randomly assigned to a judge, and the judge looks and sees that Judge Burke had
the Ladinsky litigation and transfers it back to him as some sort of related action,
and then we find ourselves right back where we started with a nonrandom
assignment.
That was part of our thought process in filing in the Middle District; that if we were
to file in the Northern District, we may find ourselves right back where we started
in this awkward, uncomfortable situation where we didn’t understand why the case
got to him.
But the other aspect of it was once we had our new slate of plaintiffs that ultimately
became Eknes-Tucker, there were a number of them who the defendants – which
were – made venue proper in both the Middle District and the Northern District, to
be honest, but there was a slight leaning toward the Middle District. So, I mean, it
did have to do with getting out from under the procedural issue we were worried
about in the Northern District, but it also had to do with we had a slate of plaintiffs
who made venue proper in the Middle District.
....
So, it’s not that we were trying to get away from Judge Burke, at least from my
perspective. We were not trying to get away from Judge Burke, we were trying to
get away from being automatically assigned back to him on a related case basis and
again finding ourselves in a position where we felt like we did not have a randomly
assigned judge. And that was our issue.
It was not Judge Burke. All along – I mean, and some background, we’d been
working on this matter for almost two years, and very early on in all of this we
talked about the different judges of the Northern District and the Middle District
and receptivity and that sort of thing to these types of claims. We knew Judge Burke
was always a possibility, yet we still filed in the Northern District. It was never –
there was never a disqualifying factor for us that we could draw Judge Burke. And
47
it goes back to had this been a random assignment, it would have been a different
analysis.
....
The issue that arose with the Northern District assignment was it had the appearance
that the case was being almost pulled over to him, and that was the concern. And if
that was the concern, then we did take into account our prospects of potential
success based on what we knew of him.
(Aug. 4 Hearing Tr. at 266-68).
But, there are major problems with Doss’s explanation. First, Minter testified that his
perception of Judge Burke as a bad draw was a reason for filing in the Middle District: “we weren’t
sure what the heck had just happened, and we’re not sure [Judge Burke] would be a good draw for
the case.” (Nov. 3 Hearing Tr. at 158). He shared his views about refiling to avoid Judge Burke
with Eagan, Doss, McCoy, and Orr. (Id. at 160-61). Minter testified that it was he and Levi who
drove the decision on where to refile. (Id. at 158-59).
Second, Judge Burke was randomly assigned the Walker case. When it was transferred
from the Middle to the Northern District, there was not a reference to the division it should be
transferred into. (May 20 Hearing Tr. at 32). The only party-plaintiffs in Walker who resided in
the Northern District lived in the District’s Northeastern Division. (Id. at 31-32). Therefore, the
Clerk’s office for the Northern District docketed the case in that division. (Id.). Judge Burke, who
sits in Huntsville, and regularly draws cases out of the Northern District’s northern jury area, was
randomly assigned Walker. This was not a “nonrandom assignment.”
Third, and contrary to the lawyers’ real, imagined, or conjured “concerns” otherwise, there
was no “procedural issue.” Counsel claim they were caught off guard by what they now say was
the irregular assignment of Ladinsky to Judge Burke. They contend the assignment violated the
“first-filed rule.” (See Aug. 4 Hearing Tr. at 62-63). But, that position misses the mark. As the
48
Panel explained at the August 4 hearing, the first filed rule comes into play when there are multiple
filings in different districts and the cases have significant overlap. In such a circumstance, the
district court assigned to the later-filed case can exercise its discretion to transfer that case to the
forum (i.e., the district) of the first-filed case. So, the first filed rule deals with inter-district
transfers. Obviously, here, Walker was transferred by Chief Judge Marks from the Middle District
to the Northern District.
What counsel claim they were concerned with here is perhaps more accurately described
as the procedure that comes into play when two cases are filed in the same district and there is a
question about whether they should be consolidated or otherwise transferred so that the same judge
presides over them. This procedure is not so much a rule as a practice. The practice of the Northern
District is that if there is a motion to consolidate or reassign a subsequently filed case to a judge
presiding over an earlier filed and related case, the motion is decided by the judge presiding over
the earlier filed case. Of course, that is exactly what occurred here, although there was not
technically a motion filed. (Counsel for the state of Alabama and the Ladinsky and Walker
attorneys had agreed to file a motion to consolidate, but it was not yet filed at the time of the
dismissal of Walker and Ladinsky). Judge Axon, who presided over Ladinsky, which was the
earlier filed case, decided that the cases should be assigned before the same judge, and she entered
in order transferring Ladinsky to Judge Burke. The problem that the lawyers who are subject to
this inquiry had with that ruling was not that the wrong process was followed, but the wrong result
(at least in their mind) was reached.
Indeed, McCoy’s testimony at the hearing held on November 3 is indicative of results-
oriented decision-making, not a good faith objection to any alleged procedural irregularity. As
McCoy candidly informed the Panel, had the posture been reversed -- i.e., the case been reassigned
49
in the supposedly irregular manner from Judge Burke to Judge Axon -- the Ladinsky team would
have regarded such a reassignment as a “bank error in [their] favor.” (Nov. 3 Hearing Tr. at 214).
Of course, counsel and parties are permitted to have opinions about (and even gauge their
likelihood of) success before different judges. But, McCoy’s testimony is difficult to square with
the notion that the Ladinsky counsel were truly focused on any supposed procedural irregularity.
By Tuesday, April 19, the decisions were made. The Ladinsky team filed the Eknes-Tucker
complaint in the Middle District. (Eknes-Tucker, 2:22-cv-184-LCB (M.D. Ala.), Doc. # 1). The
case was randomly assigned to Judge Huffaker. On April 20, 2022, Judge Huffaker reassigned
Eknes-Tucker to Judge Burke under the court’s authority “to manage the district court docket,
promote the orderly and expeditious disposition of cases, and reassign a case to a judge over a
prior-related case,” as Judge Burke “was previously assigned two cases substantially similar to
[Eknes-Tucker], both of which were voluntarily dismissed on April 15, 2022.” (Eknes-Tucker,
2:22-cv-184-LCB (M.D. Ala.), Doc. # 3). Counsel did not challenge the reassignment. Perhaps
ironically, on May 13, Judge Burke granted in part the Eknes-Tucker plaintiffs’ motion for
preliminary injunction and enjoined enforcement of Section 4(a)(1)-(3) of the Act pending trial.
(Eknes-Tucker, 2:22-cv-184-LCB (M.D. Ala.), Doc. # 107).
V. The Panel’s Findings
The Panel is not naïve. Lawyers sometimes consider potential judicial assignments in
determining where to file a case, and there may be reasons why in certain cases some judges may
be considered more favorable draws than others. So, the Panel does not condemn the lawyers for
fretting about their chances of success before a particular judge. Of course, the irony here is that
50
counsel ultimately succeeded before Judge Burke. But in this case, counsel did more than fret.
They made plans and took steps in an attempt to manipulate the assignment of these cases.9
After carefully considering all the testimony provided in this inquiry, the Panel finds
without hesitation that Eagan, Doss, McCoy, Levi, Minter, Esseks, Hartnett, Shortnacy, Faulks,
Orr, and Charles purposefully attempted to circumvent the random case assignment procedures of
the United States District Courts for the Northern District of Alabama and the Middle District of
Alabama.
Counsel’s misconduct in the three cases (both individual and collective) included:
(1) Walker counsel marking Walker related to a case closed one year earlier decided
by a “favorable” judge,
(2) Walker counsel contacting the chambers of Judge Thompson (who was never
assigned to Walker) to directly and indirectly influence or manipulate assignments
away from Chief Judge Marks to Judge Thompson,
(3) Walker counsel attempting to persuade Ladinsky counsel to transfer the latter case
to the Middle District to be before Judge Thompson,
(4) coordinating the dismissal of the Walker and Ladinsky cases after their assignment
to Judge Burke, and then making clear that the case would be refiled when
commenting to the media about re-filing,
(5) engaging in numerous and wide-ranging discussions about how judges were
favorable or unfavorable in the context of deciding whether to dismiss and refile
their cases,
(6) suddenly dismissing Walker and Ladinsky after a series of phone conferences in
which counsel discussed a number of matters, including their prospects in front of
Judge Burke and that he was a bad draw,
(7) even though (as they admit) time was of the essence and their stated goal was to
move quickly to enjoin what they viewed as an unconstitutional law, abruptly
stopping their pursuit of emergency relief, and deciding to dismiss and refile a case
in the Middle District with brand new plaintiffs,
9
All of these decisions and actions were driven by counsel’s assessment of the judges assigned to the cases
(or preferred by the lawyers). It is one thing for attorneys to fret about potential judicial assignments before the ball is
snapped (i.e., before a case is assigned). It is another to try to change the play after the case has been assigned.
51
(8) Ladinsky counsel’s over-the-weekend decision to file Eknes-Tucker in the Middle

District, even though the plan for years had been to file suit in the Northern District,
(9) Ladinsky counsel’s decision to file a new case with new plaintiffs in the Middle
District to avoid the appearance of judge shopping and to avoid Judge Burke, and
(10) claiming that the dismissal was because Judge Axon did not explain the
reassignment of Ladinsky and Judge Burke set Walker for a status conference in
Huntsville on April 18.10
The testimony and evidence convince the Panel that Walker, Ladinsky, and Eknes-Tucker
counsel intentionally attempted to direct their cases to a judge they considered favorable and, in
particular, to avoid Judge Burke. The Panel has no doubt that Walker counsel and Ladinsky counsel
would not have dismissed their cases, and Ladinsky counsel would not have filed Eknes-Tucker in
a wholly different district than Ladinsky, if Judge Burke was never assigned to Ladinsky.
VI. Conclusion
The Clerk of Court is DIRECTED to serve a copy of this Final Report on the Honorable
Liles C. Burke, United States District Judge of the Northern District of Alabama, so he may
proceed as appropriate.
The Clerk of Court is FURTHER DIRECTED to serve a copy of this Final Report on the
Honorable L. Scott Coogler, Chief United States District Judge of the Northern District of
Alabama, and the Honorable Emily C. Marks, Chief United States District Judge of the Middle
District of Alabama.
The Clerk of Court is FINALLY DIRECTED to close this case.
10
Counsel obviously disregarded the opportunities afforded them at the status conference with Judge Burke
to discuss (and advocate) how Judge Burke may approach the litigation (e.g., whether to allow Ladinsky counsel to
file a TRO and whether to consolidate the cases or keep them on separate tracks.)
52
DONE this 3rd day of October, 2023.
53

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Case 2:22-cv-00184-LCB-CWB Document 339 Filed 10/27/23 Page 1 of 53

UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

FINAL REPORT OF INQUIRY

Before Proctor, D.J., Watkins, D.J., and Beaverstock, D.J.:

FOR THE PANEL:

of Alabama and the Middle District of Alabama.

District of Alabama and the Middle District of Alabama.

Final Report to Judge Burke.

I. Legal Authority to Conduct the Inquiry

circumvent a court’s random case assignment -- abuses the judicial process:

We have no difficulty concluding that a contrivance to interfere with the judicial

In re BellSouth Corp., 334 F.3d 941, 959-60 (11th Cir. 2003).

II. History of Walker, Ladinsky, and Eknes-Tucker

Act’s effective date was to be May 8, 2022.

Completing Civil Cover Sheet Form JS 44, https://www.almd.uscourts.gov/sites/default/files/

2022-06/JS-044-civil-cover-sheet-rev-04-2021.pdf. Corbitt, a lawsuit challenging an Alabama

(Corbitt, 2:18-cv-91-MHT (M.D. Ala.), Doc. # 113).

temporary restraining order and/or preliminary injunction blocking enforcement of Alabama’s

case under Rule 41.

“ma[de] no finding on the issues of consolidation.” (Id.).

argue the merits of the motion for injunctive relief.” (Id.).

Ala.), Doc. # 14).

pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Walker, 5:22-cv-480-LCB (N.D.

cv-447-LCB (N.D. Ala.), Doc. # 15).

dropped-could-be-refiled.html. On Monday, April 18, 2022, Eagan made a similar statement to a

presides over Eknes-Tucker in the Middle District. (Id.).

III. Procedural History of the Inquiry

Of the 39 lawyers subject to this inquiry, 21 lawyers appeared in Walker, 17 lawyers

involved in the cases. (Id. at 48-52).

Walker were categorized as follows:

• Leaders and decision-makers: Esseks; Hartnett; Borelli; Egyes; and Faulks.

(May 20 Hearing Tr. at 46-48, 63-73, 90-93).

Tucker in the Middle District the next week. (Id. at 42-45).

lawsuit. (See, e.g., May 20 Hearing Tr. at 98-130).

this inquiry should proceed. (Id. at 41-43).

any additional oral testimony. (Doc. # 21).

participation in and knowledge of the following categories:

1. The actual or potential judicial assignments in Ladinsky, Walker, and/or

2. Any actions or decisions taken in the course of preparing to file Ladinsky,

3. Any action or decision that relates to which parties to name in Ladinsky,

5. Any and all actions or decisions that relate to coordination and/or

to stay or terminate the inquiry. (See id.).

Hoverman Terry, Ray, Shortnacy, and Doss testified.2

in the attorneys’ declarations. (See Doc. # 22 at 2-3).

Shortnacy. (Docs. # 1, 59, 70).

discusses below several areas of concern, in turn.

A. Marking Walker Related to Corbitt

Corbitt, 2:18-cv-91-MHT (M.D. Ala.), Doc. # 113).

to mark it.” (Id.).

B. Contact With Judge Thompson’s Chambers

her of the motion for preliminary relief.

alert her to the existence or filing of a TRO.

forgot about the phone call to Judge Thompson’s chambers.

Veroff explained how she learned this information:

[O]n April 14, 2022, I reached out to an attorney in Alabama referred to me by a

4. The messages reflect that the Alabama attorney I contacted

The information Veroff eventually received, though not necessarily reliable,